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2CriminalLaw20211.pdf
ISSM 561 Criminal Law Martin Kratz, QC
© 2021
Agenda
Introduction to Criminal law
Criminal law and the Charter of Rights and Freedoms
Search and seizure and S. 8 of the Charter
Arrest and Detention under the Charter
Common Criminal offences
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Introduction to Criminal law
Criminal law is a public law
It deals with the exercise of the power of the state to seek to deter crimes.
Crimes are any act or omission that the state believes are so serious that it seeks to deter them with the risk of punishment.
Punishments can vary from the payment of a fine to incarceration in jail.
The level of the punishment will usually be set in proportion to the severity of the crime.
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Introduction to Criminal Law
Under the Canadian constitution, the power to establish criminal law and rules of investigation is vested in the federal Parliament.
The provinces share responsibility for law enforcement,
while the power to prosecute criminal offences is assigned to the federal government,
responsibility for prosecutions is delegated to the provinces for most types of criminal offences.
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Introduction to Criminal Law Illegality is an element of every crime.
Generally, the Federal government must enact a criminal law specifying a crime and its elements before it can punish an individual for criminal behaviour.
Criminal law generally defines the rights and obligations of individuals in society.
Common issues in criminal law are the elements of specific crimes and the elements of various criminal defences.
Criminal procedure generally concerns the enforcement of individuals’ rights during the criminal process. Examples of procedural issues are individuals’ rights during law enforcement investigation, arrest, filing of charges, trial, and appeal.
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Elements of a crime Most criminal offences in Canada require the basic requirements of:
1. an action or omission (known as the "actus reus”), and
2. a criminal intent (known as the "mens rea”).
The requirement of a voluntary criminal intent comes from a natural law requirement requiring fault.
What constitutes a actus reus and mens rea depends on the offence itself.
The crime of theft requires physically taking something (the actus reus) coupled with the intent to permanently deprive the owner of the object (the mens rea).
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Civil Law vs. Criminal Law Civil law is private law, between individuals, not the government.
Civil law provides a remedy for individuals who need to enforce private rights against other individuals.
Civil litigation resolves a dispute between individuals, called a plaintiff (the injured party) and defendant (the alleged wrongdoer).
Every civil litigation matter includes a victim (the plaintiff), that has suffered harm.
The goal of the civil litigation is to compensate the plaintiff for the injury.
When the type of civil litigation involves an injury, the injury action is called a tort.
We will study civil law later in this course.
Criminal law involves regulations enacted and enforced by government action.
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Parties in a criminal prosecution The government institutes the criminal prosecution, rather than an individual plaintiff.
If the defendant commits a crime, the Queen pursues the criminal prosecution.
Hence, cases are brought in the name of the Queen. e.g. R v. Jones.
The alleged wrongdoer is called the defendant and can be an individual, corporation, or other business entity.
The lawyer who represents the government controls the criminal prosecution.
They are called “crown prosecutors” or “crown” for short, since they represent the Queen.
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Criminal Law The defendant in a criminal prosecution can be represented by a private lawyer or a free lawyer paid for by the government if he or she is unable to afford legal fees and is facing incarceration.
The Constitution and Charter of Rights and Freedoms is in effect in any criminal proceeding.
The presence of the Constitution at every phase of a criminal prosecution changes the proceedings significantly from the civil lawsuit.
The criminal defendant receives many constitutional protections, including the right to remain silent, the right to due process of law, the freedom from double jeopardy, and the right to a jury trial, etc.
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Fault and Punishment The goal of a criminal prosecution is to punish the defendant.
A consequence of the goal of punishment in a criminal prosecution is that fault is almost always an element in any criminal proceeding.
comes from the religious and moral (natural law) underpinnings of criminal law.
It is unfair to punish a defendant who did nothing wrong.
This makes criminal law justice oriented.
Injury and a victim are not necessary components of a criminal prosecution because punishment is the objective, and there is no plaintiff.
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Civil vs. Criminal Litigation Feature Criminal Prosecution Civil Litigation
Victim No Yes. This is the plaintiff.
Harm No Yes. This is the basis for damages.
Initiator of lawsuit Government Plaintiff (injured person)
Lawyer for the initiator Crown prosecutor Private lawyer
Lawyer for the defendant
Private lawyer or public defender Private lawyer
Constitutional protections Yes No
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Burden of Proof The burden of proof in a criminal case is to offer evidence that the court or jury could reasonably believe, in support of a contention, failing which the case will be lost.
The criminal standard is “beyond a reasonable doubt”.
The standard of "reasonable doubt" consists of a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.
It is not based on "sympathy or prejudice”.
Proof beyond a reasonable doubt "does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt.”
However, belief that the accused is "probably guilty" is not sufficient.
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Criminal Process The role of the police is to gather evidence and put together a case
RCMP are the police in Alberta where there is not a municipal police force. RCMP also deal with interprovincial and international crime
RCMP and large municipal agencies often have specialty units (e.g. economic crimes, tech crimes, etc.)
In Alberta, other than lengthy cases or ones where there are international aspects, police lay the charges
On complicated cases, pre-charge approval is provided by the Crown
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Concurrent Proceedings When a victim is harmed there can be concurrent civil and criminal proceedings.
Civil proceedings, once commenced are often put on hold until criminal proceedings are completed
Implied undertakings prevent use of civil discovery transcripts in criminal proceedings without a court order
Certificate of conviction is evidence, but not determinative, that offender committed the acts in question
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Private Prosecutions If police do not lay charges, an individual can swear a private information
Then there will be a process hearing before a Provincial Court Judge to see if accused will have to answer to the charge
If no process – the matter eventually is deemed to be dismissed
If process, Crown, as a matter of policy, takes over the prosecution.
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The Role of the Crown The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.
Legal counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly.
The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.
It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
Boucher v. The Queen [1955] SCR 16 16
The Decision to Prosecute The Provincial Crown prosecutes Alberta Statutes and Criminal Code offences
The Public Prosecution Service of Canada prosecutes federal statues other than the Criminal Code
The Prosecutions Service look to whether:
A reasonable likelihood of conviction exists, and
If it is in the public interest to prosecute
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Types of Criminal Offences Indictable – more serious ones with maximum penalties ranging from 2 years to life.
No limitation period for charges to be laid.
No maximum fine.
Summary – usually a maximum penalty of a fine of $5,000 and/or 6 months imprisonment
Hybrid – Crown can elect summary procedure or indictment.
On some hybrid offences when the Crown elects summary procedure the maximum period of imprisonment is 18 months
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Disclosure Obligation The obligation of disclosure by the Crown enshrined in s. 7 of the Charter of Rights and Freedoms
Police have to turn over the “fruits of the investigation” to defence counsel
Crown usually edits out witness addresses and phone numbers
Defence can bring 3rd party records application for someone to produce evidence that may “reasonably assist” the defence
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Judicially Authorized Searches Police can apply for wiretaps, search warrants, production orders and assistance orders
A Court order can require you to assist them with getting the material or information named in the order
It is illegal to intercept communications where there is a reasonable expectation of privacy
That is why terms of use (TOU) agreements acknowledged by suspects are of critical importance saying they are subject to monitoring
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Civilian Arrest Powers 494(1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
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Civilian Arrest Powers 494 (2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
494 (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
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Tresspass to Premises Act Applies to buildings or structures or any part or portion of a building or structure
S. 2 - No person shall trespass on premises with respect to which that person has had notice not to trespass.
S. 3 - A trespasser, whether or not any damage is caused by the trespass, is guilty of an offence and liable
(a) in the case of an individual,
(i) for a first offence, to a fine not exceeding $10,000, or to imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment, and
(ii) for a 2nd or subsequent offence in relation to the same premises, to a fine not exceeding $25,000, or to imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment, …
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Tresspass to Premises Act
S. 5(1) A trespasser may be apprehended without warrant by (a) any peace officer, or
(b) the owner or an authorized representative of the owner of the premises in respect of which the trespass is committed.
(2) Where a person other than a peace officer apprehends a trespasser, that person shall deliver that trespasser to a peace officer as soon as practicable.
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Civilian search and seizure
The most common circumstances under which a civilian or security worker will be required to address search and seizure are during arrest and response to a witnessed theft.
During arrest, you may search an individual for anything: - that may cause injury to either the individual or licensee, - that may facilitate the escape of a detainee, or - if destroyed, would result in the destruction of potential evidence.
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Police Arrest Power 495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal … is in force within the territorial jurisdiction in which the person is found.
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Police Arrest Power 495 (2) A peace officer shall not arrest a person without warrant for
…
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.
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Police Arrest Power
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).
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Arrest
Can use reasonable, non lethal force to effect an arrest
Can do safety “pat down” search
A security officer or civilian cannot do an “evidentiary” search
Since you do not know who you are dealing with, it is better to get a good description and contact police unless exigent circumstances exist
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Youth Criminal Justice Act
Age of criminal responsibility begins at age 12
Covers offenders up to age 18
Much more complicated rules for taking statements than adults
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Restitution After conviction can be restitution orders under the Youth Criminal Justice Act and the Criminal Code. It can be part of probation or a stand alone order.
S. 738 of the Criminal Code allows this …
Crown makes the application
Is discretionary for the court to grant it
Court will not make the order if the amount is not readily ascertainable
Can be registered as a civil judgement
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Restitution
Cannot get interest or costs
As a practical matter, should sue civilly as the the Crown may not apply for the order or the court may not grant it
If granted, you have to decide if it is worthwhile to continue with any parallel civil action
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Abuse of Process Doctrine
Cannot use threat of criminal process to collect a civil debt
If court feels that is the reason the complainant is pursing charges then a court can stay proceedings which has same effect as an acquittal
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Canadian Victims Bill of Rights
Requires court to consider restitution
Also requires Crown and law enforcement to protect victims and their locations
Does not give rise to cause of action if this does not occur
Requires, where possible, for law enforcement and Crown to advise where case is at and discuss any resolution in advance with victim
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Criminal Law
Questions?
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Role of the Charter of Rights
Charter of Rights and Freedoms Recall the Charter limits state action against the Individual
S. 7 - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
S. 8 - Everyone has the right to be secure against unreasonable search or seizure
S. 24(2) - Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
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Charter of Rights and Freedoms None of the Charter rights or freedoms are absolute
Limits on those rights and freedoms are subject to:
such reasonable limits
prescribed by law
as can be demonstrably justified in a free and democratic society" (s. 1)
We consider how a Court balances limitations on the rights and freedoms under the Charter
Use security and investigative related examples
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Charter of Rights and Freedoms Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37
Example of contrasting rights for a security purpose
Regulation requiring photo for all Alberta driver’s licences
Security purposes – licenses widely used for identification – limit identity theft
Photograph taken at issuance of the licence is placed in the Province’s facial recognition data bank
Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken
Members propose non-photo licenses marked "not for identification”
Challenged the constitutionality of the regulation alleging an unjustifiable breach of their religious freedom
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Alberta v. Hutterin Brethren
Section 2- Everyone has the following fundamental freedoms: (a) freedom of conscience and religion;
Section 1 - The Charter guarantees the rights and freedoms set out in it subject only to (a) such reasonable limits (b) prescribed by law (c) as can be demonstrably justified in a free and democratic society
Issue: Is the photo regulation a reasonable limitation demonstrably justified in a free and democratic society?
If not, the regulation is void
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Alberta v. Hutterin Brethren Analysis Step 1 – Is the violation of a Charter right or freedom made out?
S. 2(a) - Freedom of Religion
“You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth” (Exodus 20:4)
Group believe photos are likenesses within the Second commandment
Group claims effect of regulation is to put members in the position of violating their religious commitments, or of foregoing driver’s licences
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Alberta v. Hutterin Brethren
Test: Infringement of S.2(a) right made out where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial
Sincere belief is proven
Court assumes measure would interfere with religious belief or practices
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Alberta v. Hutterin Brethren
Analysis Step 2.1 – Is the limit prescribed by law?
Before a proportionality analysis is undertaken, the court must satisfy itself that the measure is “prescribed by law”
Here, passed by regulation
Regulations are measures “prescribed by law” under Section 1
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Alberta v. Hutterin Brethren Analysis Step 2.2 – Is the purpose for which the limit is imposed pressing and substantial?
Government’s objective in imposing a universal photo requirement being “to prevent identity theft or fraud and the various forms of mischief which identity theft may facilitate, and . . . the harmonization of international and interprovincial standards for photo identification
Maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance, capable of justifying limits on rights
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Alberta v. Hutterin Brethren Analysis Step 2.3 – Is the limit proportionate - rationally connected to the goal, limits the right as little as reasonably necessary, and is proportionate in its effects?
(a) rationally connected to the goal
Alberta’s evidence demonstrated the ways in which the existence of an exemption from the photo requirement would increase the vulnerability of the licensing system and the risk of identity- related fraud
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Alberta v. Hutterin Brethren Analysis Step 2.3 – Is the limit proportionate - rationally connected to the goal, limits the right as little as reasonably necessary, and is proportionate in its effects?
(b) limits the right as little as reasonably necessary
Assess if less harmful means of achieving the legislative goal
Test: Is there is an alternative, less drastic means of achieving the objective in a real and substantial manner?
Here, not shown
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Alberta v. Hutterin Brethren Analysis Step 2.3 – Is the limit proportionate - rationally connected to the goal, limits the right as little as reasonably necessary, and is proportionate in its effects?
(c) is the law proportionate in its effects?
balance the harm done to the claimants’ religious freedom against the benefits associated with the universal photo requirement for driver’s licences, is the limit on the right proportionate in effect to the public benefit conferred by the limit?
Benefits of the legislative goal – enhancing security and addressing risk of fraud, assist roadside safety, harmonization with other schemes
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Alberta v. Hutterin Brethren Analysis Step 2.3 – Is the limit proportionate - rationally connected to the goal, limits the right as little as reasonably necessary, and is proportionate in its effects?
(c) is the law proportionate in its effects? (continued)
Assess harm done – recognize religious freedom is fundamental
Seriousness of a particular limit must be judged on a case-by-case basis
Here options exist – does not deprive the adherent of a meaningful choice as to the religious practice
Possible to hire people to do the driving for them
Weight public benefit with limit on religious rights – effects here at the less serious end of the scale
Court concludes that the limit is proportionate - so the regulation is upheld as valid
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Charter of Rights and Freedoms
Any questions on how a Court assesses a violation of the Charter of Rights and Freedoms?
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Reasonable Expectation of Privacy
Charter of Rights and Freedoms
In Criminal investigation and prosecutions the Charter of Rights and freedoms provides protections for individuals
As a result, it limits the actions of the state
In the next section, we will explore the impact of the reasonable expectation of privacy on investigations by the state
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Reasonable Expectation of Privacy
Under s. 8 Charter - everyone has the right to be secure against unreasonable search or seizure.
S. 8 emphasizes the protection of privacy as a prerequisite to individual security, self- fulfilment and autonomy as well as to the maintenance of a thriving democratic society
An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access
We will examine the relation of the S. 8 Charter right in computer related search and seizure cases …
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Reasonable Expectation of Privacy R. v. Edwards [1996] 1 SCR 128.
Onus is on the person claiming the breach to show they have a reasonable expectation of privacy.
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place; determined on the basis of the totality of the circumstances.
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
Once a reasonable expectation of privacy shown, then the focus is on whether search is conducted reasonably
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How do Police get access to areas where a reasonable expectation of privacy exists?
Consent of the individual
Judicial authorization
search warrant,
general warrant,
etc.
Exigent circumstances
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Reasonable Expectation of Privacy The private sector privacy law, PIPEDA, has an exemption S. 7(3)
“an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is …
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that …
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, …”
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Searches of Computers R. v. Morelli 2010 SCC 8
Court’s viewpoint
“This case concerns the right of everyone in Canada to be secure against unreasonable search and seizure.
And it relates, more particularly, to the search and seizure of personal computers.
It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”
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Reasonable Expectation of Privacy
We will explore the evolution of the Court’s assessment of whether or not there is a reasonable expectation of privacy in various forms of electronic communications and devices
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Reasonable Expectation of Privacy R. v. Cole, 2012 SCC 53
Cole, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer.
Cole was permitted to use his work-issued laptop computer for incidental personal purposes.
While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student.
The technician notified the principal, and copied the photographs to a compact disc.
The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc.
The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes.
The trial judge excluded all of the evidence under S. 8 and S. 24(2) of the Charter.
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R. v. Cole Canadians may reasonably expect privacy in the information contained on their own personal computers.
The same applies to information on work computers, at least where personal use is permitted or reasonably expected.
There is no law authorizing the police to conduct a warrantless search of Cole’s work laptop.
The lawful authority of his employer — a school board — to seize and search the laptop did not furnish the police with the same power.
The school board’s “third party consent” to the search was of no legal consequence.
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R. v. Cole Here, Cole’s work-issued laptop was governed by the school board’s Policy and Procedures Manual, which allowed for incidental personal use of the board’s information technology.
The policy stipulated that teachers’ e‑mail correspondence remained private, but subject to access by school administrators if specified conditions were met.
The policy did not address privacy in other types of files, but it did state that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”.
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R. v. Cole Court: the initial remote access by the technician was not a “search” for the purposes of s. 8 . But the examinations by the police, the principal, and the school board did engage s. 8
Did Cole has a reasonable expectation of privacy in the work laptop?
4 factors:
(1) the subject matter of the alleged search;
(2) the claimant’s interest in the subject matter;
(3) the claimant’s subjective expectation of privacy in the subject matter; and
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
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R. v. Cole (1) the subject matter of the alleged search;
subject matter of the search is the data, or informational content of the laptop’s hard drive, its mirror image, and the Internet files disc
(2) the claimant’s interest in the subject matter;
(3) the claimant’s subjective expectation of privacy in the subject matter;
Both above inferred from Cole’s use of the computer to browse the internet and store images on his computer
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R. v. Cole
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
The closer the subject matter of the search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy.
Internet-connected devices reveal our specific interests, likes, and propensities, the sort of private information falls at the very heart of the “biographical core” protected by the Charter.
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R. v. Cole Ownership of property is a relevant consideration, but is not determinative
Context in which personal information is placed on an employer-owned computer is significant. The policies, practices, and customs of the workplace are relevant to the extent that they concern the use of computers by employees. These “operational realities” may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information
The operational realities of Cole’s workplace weigh both for and against the existence of a reasonable expectation of privacy.
For, because written policy and actual practice permitted Cole to use his work-issued laptop for personal purposes.
Against, because both policy and technological reality deprived him of exclusive control over and access to the personal information he chose to record on it.
In this case, the totality of the factors supported a finding of an expectation of privacy in the data on the work laptop
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R. v. Cole Follow up from this decision …
Many organizations look to make computer use policies more specific after this decision. Terms often include things such as:
Prohibit any unlawful use of the device
Tie use of the device to an acceptable use policy
Confirm that there is no expectation of privacy at all
Express caution that data may be accessed or shared with others
Comment on information being available for disciplinary or criminal prosecutions
Express acknowledgement and/or signing the policy
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Reasonable Expectation of Privacy R. v. Vu 2013 SCC 60 - does warrant include a specific right to search a computer?
Police had search warrant to search for drugs and “computer generated notes” but the warrant did not allow search of a computer
Police found a computer. The police searched it without a warrant.
Search of computer lead to proof that Vu was occupant of residence (necessary to establish possession of the drugs)
Crown argued did not need an additional warrant to search computer drawing an analogy to a filing cabinet in the residence.
SCC answers this question:
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R. v. Vu In my view, it should not. Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach. One cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers found within that place. This can only be assured if, as is my view, the computer search requires specific pre-authorization.
In practical terms, the requirement of specific, prior authorization means that if police intend to search computers found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched.
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Reasonable Expectation of Privacy R. v. Spencer [2014] SCC 43 - IP addresses
Court assesses reasonable expectation of privacy in an IP address
Spencer, lived with his sister, connected to the Internet through an account registered in his sister’s name.
He used the file-sharing program on his desktop computer to download child pornography from the Internet.
Police, using publicly available software, searched for anyone sharing child pornography.
Police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file-sharing program.
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R. v. Spencer To connect the computer usage to a location and a person, police made a written “law enforcement request” to ISP for the subscriber information including the name, address and telephone number of the customer using that IP address
Police did not get a search warrant - they claim under PIPEDA S. 7(3)(c.1)(ii) allows the ISP to share the information.
The ISP shared the information with the police.
Police got a search warrant to search the home where they found the child pornography
This led them to Mr. Spencer.
He had downloaded child pornography into a folder that was accessible to other Internet users using the same file-sharing program.
He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.
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R. v. Spencer The Court examines the issues: Did the police obtaining the subscriber information matching the IP address from the ISP constitute a search?
Did Spencer has a reasonable expectation of privacy in the subscriber information?
4 factors:
(1) the subject matter of the alleged search;
(2) the claimant’s interest in the subject matter;
(3) the claimant’s subjective expectation of privacy in the subject matter; and
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
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R. v. Spencer (1) the subject matter of the alleged search;
Court, dealing with informational privacy, stressed the strong claim to privacy in relation to information that is at the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”
Not just subscriber details
To label information of this kind as mere “subscriber information” or nothing but “name, address, and telephone number information”, tends to obscure its true nature.
This characterizations gloss over the significance of an IP address and what such an address, once identified with a particular individual, is capable of revealing about that individual, including the individual’s online activity in the home
Here, the subject matter of the search is the identity of a subscriber whose Internet connection is linked to particular, monitored Internet activity.
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R. v. Spencer (2) the claimant’s interest in the subject matter;
Issue is whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes
Privacy in relation to information includes at least three conceptually distinct although overlapping understandings of what privacy is. These are privacy as secrecy, privacy as control and privacy as anonymity
Informational privacy is often equated with secrecy or confidentiality.
Privacy also includes the related but wider notion of control over, access to and use of information, that is, “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”
Privacy as anonymity. Anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance
Conclude that the police request to ISP for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy.
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R. v. Spencer (3) the claimant’s subjective expectation of privacy in the subject matter;
ISP Terms of Service do not promise privacy or confidentiality. ISP claims lawful authority under ToS, PIPEDA.
ISP “may disclose any information as is necessary to . . . satisfy any legal, regulatory or other governmental request”. PIPEDA S. 7(3)(c.1)(ii).
ISP has a legitimate interest in assisting in law enforcement relating to crimes committed using its services
Grave nature of child pornography offences, made it reasonable to expect that an ISP would cooperate with a police investigation
PIPEDA permits disclosure only if police have “lawful authority”
ISP’s legitimate interest in preventing crimes committed through its services that entirely different considerations may apply where an ISP itself detects illegal activity and of its own motion wishes to report this activity to the police, comes within S. 7(3)(d) PIPEDA.
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R. v. Spencer (3) the claimant’s subjective expectation of privacy in the subject matter;
Disclosure at the request of the police would be made only where required or permitted by law. Such disclosure is only permitted by PIPEDA in accordance with the exception in s. 7 , which in this case would require the requesting police to have “lawful authority” to request the disclosure.
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
Court did not do this assessment
Finds: there is a reasonable expectation of privacy in the subscriber information.
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R. v. Spencer A warrantless search is presumptively unreasonable
The S. 8 Charter right was violated - now the Court considers if to exclude the evidence
Factors to consider if to exclude evidence under S. 24(2) of Charter:
(1) the seriousness of the Charter - infringing state conduct,
(2) the impact of the breach on the Charter -protected interests of the accused, and
(3) society’s interest in the adjudication of the case on its merits
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R. v. Spencer Court assess:
(1) the seriousness of the Charter -infringing state conduct,
Here police were acting on what they reasonably thought were lawful means to pursue an important law enforcement purpose
(2) the impact of the breach on the Charter -protected interests of the accused, and
The impact here was serious. Anonymity is an important safeguard for privacy interests online. The violation of anonymity exposed personal choices made by Mr. Spencer to be his own and subjected them to police scrutiny.
(3) society’s interest in the adjudication of the case on its merits
The evidence (the electronic files containing child pornography) is reliable. Society has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children.
Court: Uphold admission of the evidence. Here, exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.
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R. v. Spencer
Post-Spencer - ISPs do not share subscriber details without a warrant
This adds a further step to the police / investigative process
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R v. Fearon R. v. Fearon 2014 SCC 77 - cell phones / smart phones
Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery.
The investigation quickly centred on Kevin Fearon, and Junior Chapman.
Later that same evening, police arrested both men, but had not at that point located any jewellery or the handgun.
When Fearon was arrested, police conducted a pat-down search incident to the arrest.
Police found a cell phone in Fearon’s pants pocket.
Police searched the phone at that time and again within less than two hours of the arrest.
They found a draft text message referring to jewellery and opening with the words “We did it”.
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R v. Fearon
The police have a common law power to search incident to a lawful arrest. Does this power permit the search of cell phones and similar devices found on the suspect?
Court: must strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures.
We can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why
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R v. Fearon
Court: the common law power to search incident of an arrest is extraordinary because it requires neither a warrant nor reasonable and probable grounds.
In the context of arrest, the need for police “to gain control of things or information . . . outweighs the individual’s interest in privacy”
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R v. Fearon Court: Police may be justified in searching a cell phone incident to arrest if:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
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Reasonable Expectation of Privacy
R v Marakah 2017 SCC 59 - text messages
M sent text messages to an accomplice, W, regarding illegal transactions in firearms.
The police obtained warrants to search his home and that of W. They seized M’s BlackBerry and W’s iPhone, searched both devices, and found incriminating text messages.
They charged M and sought to use the text messages as evidence against him. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search or seizure.
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R. v. Marakah S. 8 applies where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access
To claim S. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable
4 factors:
(1) the subject matter of the alleged search;
(2) the claimant’s interest in the subject matter;
(3) the claimant’s subjective expectation of privacy in the subject matter; and
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
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R. v. Marakah (1) the subject matter of the alleged search;
The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission.
Look at not only the nature of the precise information sought, but also at the nature of the information that it reveals
Here it was M’s electronic conversation with W
(2) the claimant’s interest in the subject matter;
M had a direct interest in the information contained in the electronic conversation that was the subject matter of the search
(3) the claimant’s subjective expectation of privacy in the subject matter; and
M had a subjective expectation that his electronic conversation remain private
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R. v. Marakah
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
Factors Courts look at include:
(1) the place where the search occurred;
(2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and
(3) control over the subject matter.
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R. v. Marakah (1) the place where the search occurred;
it is clear that the place of the text message conversation does not exclude an expectation of privacy.
(2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and
difficult to think of a type of communication that is capable of promising more privacy than text messaging.
(3) control over the subject matter.
Crown argues M lost all control once the text was sent to W who could disclose it to others
Court: a person does not lose control of information simply because another person possesses it or can access it. Choosing to use text M was exercising control over the electronic conversation
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R. v. Marakah Court concluded M’s subjective expectation that his electronic conversation with W would remain private was objectively reasonable in the totality of the circumstances
Therefore, evidence was obtained by an unreasonable search in violation of the s.8 Charter right
In assessing whether to exclude the evidence the Court considered:
(1) the seriousness of the Charter - infringing state conduct,
(2) the impact of the breach on the Charter - protected interests of the accused,
(3) society’s interest in the adjudication of the case on its merits
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R. v. Marakah (1) the seriousness of the Charter - infringing state conduct,
Here police lawfully arrested M but did not get a warrant for the iPhone which they located 2 hours later
(2) the impact of the breach on the Charter - protected interests of the accused,
The impact here was serious.
(3) society’s interest in the adjudication of the case on its merits
SMS messages offer highly reliable and probative evidence in the prosecution of a serious offence. Exclusion of the messages “would result in the absence of evidence by which the appellant could be convicted
Court concluded publics interest in the justice system being beyond reproach justified excluding the evidence
Result, reasonable expectation of privacy in SMS messages
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Reasonable Expectation of Privacy R. v. Mills, 2019 SCC 22
Court considers investigative approaches on the internet
Police conduct a sting where an officer poses as a 14 year old girl
Intent is to catch internet child lurers
Mills sent Hotmail and Facebook messages over several moths
After 2 months, Mills was arrested in a public park where he arranged to meet the “child”
Mills was charged with child luring under S. 172.1, Criminal Code
There was no judicial authorization prior to the arrest
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R. v. Mills The offence - S. 172.1(1) every person commits an offence who, by telecommunication, communicates with a person under 14, 16 or 18 years to commit a range of offences
The police used screen capture software to introduce a record of the messages as evidence during the trail
Mills argued that his Charter right to be free from unreasonable search and seizure was infringed and applied to exclude the evidence
Trial judge found the messages were “private communications” but since the police were party to the communications the interception was subject to consent
Trial judge found Mills has an expectation of privacy in his communications
S. 8 of the Charter was breached
However, admitting the evidence would not bring the administration of justice into disrepute
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R. v. Mills The Supreme Court held (multiple decisions):
To claim S. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable
There is no “search or seizure” if there is no reasonable expectation of privacy.
4 factors:
(1) the subject matter of the alleged search;
(2) the claimant’s interest in the subject matter;
(3) the claimant’s subjective expectation of privacy in the subject matter; and
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
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R. v. Mills (1) the subject matter of the alleged search;
chat and email tend towards one to one conversations
(2) the claimant’s interest in the subject matter;
As a participant Mills has an interest in the conversation
(3) the claimant’s subjective expectation of privacy in the subject matter; and
In child luring cases the adult expects privacy
so, Mills expected the conversation to be private
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R. v. Mills (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
It is a normative question about when Canadians ought to expect privacy, given the applicable considerations
Here, the police created one of the communicants and controlled her every move —
two considerations become decisive: (1) the nature of the investigative technique used by police, and (2) the nature of the relationship between the communicants
Specifically, the investigative technique did not significantly reduce the sphere of privacy enjoyed by Canadians because the technique permitted the state to know from the outset that Mills would be communicating with a child he did not know.
In these circumstances, any subjective expectation of privacy Mills might have held would not be objectively reasonable
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R. v. Mills
A concurring judge would have come to the same result but found on seizure when the police posing as the girl conversed with Mills through Facebook messenger and email.
S. 8 does not prevent police from communicating with individuals in the course of an undercover investigation.
Another judge would have found an expectation of privacy in the text messages, a S. 8 Charter breach, but would also not have excluded the evidence
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R v. Canfield, 2020 ABCA 383
C arrives as a passenger at Edmonton airport from Cuba
Proceeds to the Customs controlled area, referred for secondary examination
BSO asks C if has child pornography on his phone
BSO asks to see picture
BSO searches phone finds more images
C is arrested
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R v. Canfield, 2020 ABCA 383 s 99(1)(a) of the Customs Act provides “An officer may
(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.
The word “goods” is defined in s 2(1) of the Customs Act as including “conveyances, animals and any document in any form”.
Three distinct types of border search. R v Simmons, [1988] 2 SCR 495
First - routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing.
Second is the strip or skin search of the person, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority.
Third a search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.
The Court notes “that each of the different types of search raises different issues….it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”:.
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R v. Canfield, 2020 ABCA 383 Section 8 of the Charter provides that everyone has “the right to be secure against unreasonable search and seizure”.
C submits that s 99(1)(a) of the Customs Act is unconstitutional and offends s 8 because it imposes no restrictions on the ability to search personal electronic devices.
They argue that individuals, even those at the border, have a reasonable expectation of privacy with respect to their personal electronic devices and that Simmons should be revisited to the extent that it does not distinguish between the search of such devices and the search of other goods.
The trial judge, concluded that Simmons “remains binding authority” and he declined to reconsider the matter.
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R v. Canfield, 2020 ABCA 383 Appeal Court considers precedent:
The doctrine of legal precedent is “‘fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps.
However, stare decisis is not a straitjacket that condemns the law to stasis.
Trial courts may reconsider settled rulings of higher courts in two situations:
(1) where a new legal issue is raised; and
(2) where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’
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R v. Canfield, 2020 ABCA 383 Personal computers and cell phone searches were not mentioned or distinguished from other goods when Simmons was decided in 1988.
The categories of search recognized by Simmons relate primarily to physical or bodily privacy; they do not address informational privacy.
The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders.
Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure, the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.
To be reasonable, such a search must have a threshold requirement.
Held: To the extent that s 99(1)(a) permits the unlimited search of personal electronic devices without any threshold requirement at all, it violates the protection against unreasonable search in s 8 of the Charter.
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R v. Canfield, 2020 ABCA 383 Held: conclude that s 99(1)(a), insofar as it purports to authorize unrestricted searches of personal electronic devices, violates the s 8 protection against unreasonable searches
Difficult to reconcile the requirement for “reasonable grounds” to search the computer or cell phone of an individual who is seeking to enter Canada pursuant to the Immigration and Refugee Protection Act with the lack of any requirement to search the computer or cell phone of an individual entering Canada pursuant to the Customs Act.
As currently drafted, s 99(1)(a) is not saved by s 1 of the Charter.
Concluded it is appropriate to give Parliament an opportunity to craft a solution that addresses and balances the various competing interests.
Accordingly, the declaration of invalidity will be suspended for one year.
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R v. Canfield, 2020 ABCA 383 Court considers s 24(2) of the Charter
Finds, similar to Spencer, this is an evolving area of the law; there was nothing unreasonable in the reliance by the CBSA on the authority of Simmons and the jurisprudence following it.
The border officials acted in good faith in deciding to search the devices and in carrying out the searches.
They uncovered real and reliable evidence of a serious offence that is crucial to the Crown’s case.
The evidence is admitted.
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On exclusion of the evidence … S. 24(2) of the Charter permits exclusion of evidence in the case of a Charter breach
Court looks at:
Seriousness of the breach
Impact on the Accused’s breach
Society’s issue on an adjudication on the merits
Evidence was not excluded in Vu, Spencer, Caulfeld and a new trial was ordered to consider if the internet files should be excluded in Cole due to uncertainty of the law in the area prior to these decisions and police not being aware they need a warrant.
Note all child pornography cases
More likely to be excluded in future searches if warrant not obtained. In Marakah evidence was excluded due to high expectation of privacy in text messages.
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Conclusions on search and seizure Important for police to consider judicial authorization before seizure of electronic evidence e.g warrants
Important for IT security managers to work with the police and not short circuit the process (which can affect the chance of a conviction)
Important for IT security managers to review adequacy of computer use policies and of acceptable use policies
Law in this area is evolving and not clear
Safest course is if you see evidence of a crime on a computer get legal advice before you go further
Do not continue searching the computer once police have been contacted
Have a clear terms of use agreement that says no personal use and no privacy in information on work computer
Make sure it is signed or acknowledged by the employee
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Also note …
An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service
S.C. 2011, c. 4
Requires ISP provider to report and preserve evidence of child pornography
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Search and seizure
Questions?
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Charter of Rights and Freedoms in the arrest context
Charter of Rights and Freedoms
In Criminal investigation and prosecutions the Charter of Rights and freedoms provides protections for individuals
As a result, it limits the actions of the state
In the next section, we will explore the impact of the Charter on arrests and detention
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Arrest and Detention
Another element is to consider to whom does the Charter apply
General rule, the Charter only applies to government actions, not interactions between private citizens or institutions
Clearly applies in cases of state power
Consider in the context of citizen's arrest power
Note use of Charter remedy (S. 24(2))
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Arrest and Detention
The Charter applies to all arrests undertaken by police, private security or individuals
The Charter does not apply where a private individual detains another individual
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Arrest and Detention R v. Lerke 1986 ABCA 15
Manager asked for identification – person had none left and came back – Manager "arrests" him for “re-entering"
Ability to order removal under Liquor Control Act
Right of owner of land under Section 4, Petty Trespass Act, to apprehend trespasser without warrant, must take promptly before a judge [Similar to Section 449(2) Criminal Code]
Search without consent revealed a package of marijuana
Manager calls police, person charged
Provincial Court found Charter breach declared evidence inadmissible (S. 24(2))
Alberta Court of Queen's Bench – found Charter applied to individual action as well as police action
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R. v. Lerke
“The history of the administration of the criminal law of England has long recognized the duty of all citizens to assist in the capture and arrest of all persons suspected of having committed a crime. … the common law from its earliest times conferred certain powers on private citizens and on peace officers to arrest without the necessity of a warrant.
In Canada today, the powers of a private person or a peace officer to arrest without a warrant are contained in the Criminal Code. … it is important to remember that a peace officer possesses all of the powers of arrest of a private citizen plus certain additional powers which will be outlined. There also exists under certain federal and provincial statutes creating offences, specific powers of arrest without warrant with respect to those offences."
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R. v. Lerke
"The modifications to the common law power of a citizen to make an arrest incorporated in the Criminal Code or in the Petty Trespass Act do not change the fundamental nature of the citizen’s arrest.
The power exercised by a citizen who arrests another is in direct descent over nearly a thousand years of the powers and duties of citizens in the age of Henry II in relation to the “King’s Peace”.
Derived from the Sovereign it is the exercise of a state function."
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R. v. Lerke
Held: When one citizen arrests another, in anticipation of the arrival of the police, the arrest is the exercise of a governmental function to which the Canadian Charter of Rights and Freedoms applies
But on the right of a citizen to search the other?
The right to search, at least to disarm, is essential
Where the search is not for weapons, but only to seize or preserve property connected to the offence, different considerations apply
Rare that the citizen making an arrest will need to search for evidentiary purposes only – do not permit fishing expedition – has to be a nexus to the offence for which the arrest is made
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R. v. Lerke
Court assesses if search was unreasonable
Invalid search because it had no nexus with the offence for which the arrest was made
Trivial offence disclosed from search vs. breach of Charter right
Result is that the evidence excluded (S. 24(2) Charter)
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Arrest v Detention R. v. Buhay, 2003 SCC 30
Security guard smells drugs in bus depot locker
Opens locker, finds drugs – promptly calls the police
No search warrant, police open locker and seize the marijuana
Court finds a reasonable expectation of privacy in the locker
S. 8 - Everyone has the right to be secure against unreasonable search or seizure
Find violation of Section 8 expectation of privacy right
Exclude the evidence under S. 24(2) Charter
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R. v. Buhay Supreme Court of Canada on role of the security guard:
Initial search by the security guards did not trigger the application of the Charter because the guards were not acting as agents of the state, nor could their activities be assimilated or ascribed to the government
Police were required to obtain a warrant to search the accused’s locker
Private security officers are no different than other private citizens
Noting - “while private security officers arrest, detain and search individuals on a regular basis, the exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected.”
Case did not consider or discuss Lerke
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Arrest v. Detention R v. Dell, 2005 ABCA 246
Dell detained at bar by bar staff, cocaine found in search
Detained by bouncer 2-5 minutes in washroom
Held: In Lerke arrest preceded search, here search for drugs before arrest
Unlike citizen’s arrest, investigative detention cannot be reasonably construed to be a specific government function that has been delegated to private citizens.
Therefore, the principles on which Lerke is based, and the government function exception, do not apply to extend Charter protection to investigative detention
Cannot be said that in brief investigative detention, the bouncer was acting as a delegate of the government, carrying out its policies and programs
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R. v. Dell If (as here) there is no question of a public breach of the peace, the topic has nothing to do with the King’s command, the King’s Peace, or any duty owed to the sovereign. That is precisely the distinction made in Lerke.
When a citizen arrests another for a crime, he acts under duty to the sovereign, and the person arrested must be brought to a justice or a constable, so that a court proceeding in the name of the sovereign may be started. Any penalty is exacted by or for the government. Neither the complainant nor the victim nor the citizen arresting is a party to that criminal proceeding.
What the bouncer did here in the washroom, and the resulting wait of 2-5 minutes, involved no such duty.
Temporary detention does not require court proceedings, nor lead to any right or duty to have a prosecution.
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Search and Seizure Charter provision – Section 8. Everyone has the right to be secure against unreasonable search or seizure
Privacy is "at the heart of liberty in a modern state”.
It is "essential for the well-being of the individual" and has a profound significance for the public order.”
The right - balancing the state's interest in law enforcement and privacy interests of persons
It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid
This point exists where there is reasonable and probable cause which lies at the point where "credibly-based probability replaces suspicion"
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Search and Seizure Police are prohibited from "unreasonable" searches.
The inquiry is based on whether the search was "reasonable" in the circumstances.
Circumstances include (1) nature of the duty performed (2) the purpose of the search
A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused
Only where the privacy right exists that there is an inquiry into the reasonableness of the search
A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable
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Arrest and Detention
Questions?
121
Limits on Police Arrest Powers
Limits on Police Arrest Powers Fleming v. Ontario, 2019 SCC 45 Supreme Court of Canada
Longstanding land dispute between the Crown and the First Nation of Six Nations of the Grand River
Six Nations protestors occupied some Crown land
The Crown purchased the land and allowed the protesters to continue to occupy it
The occupation sparked other groups in the community to organize counter- protests against the occupation and against the response of the Ontario government and the OPP
contentious atmosphere in the community culminates in violent clashes between the two sides
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Fleming v. Ontario One counter-protest group decided to hold a “flag rally” to protest the occupation and the OPP’s actions.
The plan was that participants would march and raise a Canadian flag across the street from the occupied lands
Mr. Fleming local resident intended to participate in the flag rally to express his views about the contentious issues surrounding the occupation.
On the day of the rally, Mr. Fleming began walking towards the place where it was to be held, carrying a Canadian flag.
Mr. Fleming inadvertently stepped onto the occupied land resulting in a reaction from the Six Nations protested who moved towards him.
OPP arrested Mr. Fleming, forced him to the ground, took his flag and handcuffed him.
Brought to jail and released 2 ½ hours later.
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Fleming v. Ontario Mr. Fleming was charged with obstructing a peace officer for resisting his arrest
Appeared in court on 12 separate occasions to defend himself
Charge eventually withdrawn by the Crown almost 19 months later
Mr. Fleming filed a statement of claim against the Province of Ontario and the OPP officers who had been involved in his arrest.
He claimed general damages for assault and battery, wrongful arrest, and false imprisonment, as well as aggravated or punitive damages and damages for violations of his rights under ss. 2 (b), 7 , 9 and 15 of the Canadian Charter of Rights and Freedoms .
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Fleming v. Ontario Mr. Fleming had committed no crime.
He had broken no law.
He was not about to commit any offence, harm anyone, or breach the peace.
The OPP officers claimed to have arrested Mr. Fleming for his own protection.
The question before this Court is whether Mr. Fleming’s arrest was lawful.
The OPP claim a common law power to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves
126
Fleming v. Ontario Court: A fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law
Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise.
Only to the extent to which it so provides can a person be detained or his freedom of movement arrested
127
Fleming v. Ontario Court: the claimed common law power does not exist.
Actions of the police violated Mr. Fleming’s right to freedom of expression by preventing him from taking part in the flag rally and expressing his views about contentious political issues in his community.
Mr. Fleming’s arrest was unlawful, and court upheld his appeal and restored the decision of the Ontario Superior Court
That court had awarded Mr. Fleming $139,711.90 in general damages, special damages, tort damages and Charter damages.
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Limits to Police Powers
Questions?
129
Common Criminal Offences of interest to Computer Security
S. 163 Voyeurism Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
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S. 162.1 Distribution of Intimate Images Without Consent
Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
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S. 322 Theft Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
R. v. Stewart (SCC) - does not apply to confidential information
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S. 342.1 Unauthorized Use of a Computer System
Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right
(a) obtains, directly or indirectly, any computer service;
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).
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S. 342.2 Possession of a Device to Obtain a Computer Service
Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.1 or 430, knowing that the device has been used or is intended to be used to commit such an offence, is
(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on summary conviction.
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S. 354 Possession of property obtained by crime
Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.
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S. 361 False Pretence
A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
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S. 366 Forgery
Every one commits forgery who makes a false document, knowing it to be false, with intent
(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
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S. 368 Uttering a Forged Document
Everyone commits an offence who, knowing or believing that a document is forged,
(a) uses, deals with or acts on it as if it were genuine
(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;
(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or
(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).
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S. 380 Fraud Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.
Act of dishonesty that puts victim at risk of economic loss. Can cover theft of information.
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S. 391 Unlawful Appropriation of Trade Secrets (1) Everyone commits an offence who, by deceit, falsehood or other fraudulent means, knowingly obtains a trade secret or communicates or makes available a trade secret.
(2) Everyone commits an offence who knowingly obtains a trade secret or communicates or makes available a trade secret knowing that it was obtained by the commission of an offence under subsection (1).
(3) Everyone who commits an offence referred to in subsection (1) or (2) is guilty
(a) of an indictable offence and is liable to imprisonment for a term not exceeding 14 years; or
(b) of an offence punishable on summary conviction.
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S. 397 Falsifying Books and Documents
Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, with intent to defraud,
(a) destroys, mutilates, alters, falsifies or makes a false entry in a book, paper, writing, valuable security or document, or
(b) omits a material particular from, or alters a material particular in, a book, paper, writing, valuable security or document.
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S. 402.1 Identity Theft For the purposes of sections 402.2 and 403, identity information means any information — including biological or physiological information — of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver’s licence number or password.
402.2 (1) Every person commits an offence who obtains or possesses another person’s identity information with intent to use it to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.
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S. 403 Identity Fraud
Everyone commits an offence who fraudulently personates another person, living or dead,
(a) with intent to gain advantage for themselves or another person;
(b) with intent to obtain any property or an interest in any property;
(c) with intent to cause disadvantage to the person being personated or another person; or
(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
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S. 407 Forgery of a Trademark
406 For the purposes of this Part, every one forges a trademark who
(a) without the consent of the proprietor of the trademark, makes or reproduces in any manner that trademark or a mark so nearly resembling it as to be calculated to deceive; or
(b) falsifies, in any manner, a genuine trademark.
407 Every one commits an offence who, with intent to deceive or defraud the public or any person, whether ascertained or not, forges a trademark.
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S. 408 Passing Off Every one commits an offence who, with intent to deceive or defraud the public or any person, whether ascertained or not
(a) passes off other wares or services as and for those ordered or required; or
(b) makes use, in association with wares or services, of any description that is false in a material respect regarding
(i) the kind, quality, quantity or composition,
(ii) the geographical origin, or
(iii) the mode of the manufacture, production or performance
of those wares or services.
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S. 430(1.1) Mischief to Data
Everyone commits mischief who wilfully
(a) destroys or alters computer data;
(b) renders computer data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.
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Other Criminal Offences
Widespread dissemination of copyright infringing materials (Copyright Act)
Combatting Counterfeit Products legislation
Selling, distributing, possessing, importing or exporting counterfeit goods for the purpose of trade is prohibited
Criminal offences for possessing and exporting counterfeit goods for the purpose of trade
added to the Copyright Act
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Common Criminal Offences
Questions?
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