Your secrets are safe with us!

Not hot off the presses but served with more than a mere smattering of local interest…. Owen Sound law enforcement…perhaps, hot on the trail of some mass murderer, though, it is highly unlikely to say the least, more likely some heinous cab driver who thumbed their nose at the law and charged a flat rate!
(sometimes, even as I write, it occurs to me that one’s gonna hurt, maybe not today or tomorrow, but one day….)

http://canlii.ca/t/fwq20

[189]                     This brings us to the real heart of the matter: whether the general warrant should not have been issued because it represents, as my colleague would have it, a “misuse” of s. 487.01, an “easy way out”, or a “convenient way”, “device” or “hook”, that allows the police to  “escape the rigours” of Part VI (paras. 72, 81, 90 and 105). As I read Moldaver J.’s reasons, the proposed interpretation of s. 487.01(1)(c) is driven by a need to preclude abuses of the general warrant power. I accept that judges asked to issue general warrants must be vigilant to ensure that the right to be free against unreasonable searches and seizures is fully given effect by any investigative technique that is authorized. However, my view is that this analysis should be undertaken directly under s. 487.01(1)(b), not through the lens of asking the question of whether two techniques are substantively equivalent.

[190]                     As MacPherson J.A. wisely pointed out in Ha, the “no other provision” requirement in s. 487.01(1)(c)  is not the only requirement that must be met before a general warrant may be issued (para. 44).  The section should not be approached on the assumption that Parliament intended that every investigative technique not authorized elsewhere could be authorized under s. 487.01(1): see, e.g., S. Coughlan, “R. v. Ha: Upholding General Warrants without Asking the Right Questions” (2009), 65 C.R. (6th) 41. Rather, the judge asked to issue the warrant must also be satisfied that it is in the best interests of the administration of justice to authorize the particular technique (s. 487.01(1)(b)).  This is the provision under which potential abuses of the general warrant should be addressed, in my view. Of course, even where the requirements in s. 487.01(1)(b) and (c) are met, s. 487.01(3) requires that a general warrant contain “such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances”.

[191]                     Section 487.01(1)(b) was not raised in this appeal and I do not want to say much about it beyond my view that it is the place in s. 487.01 that addresses concerns about whether a new investigative technique is one that should be authorized. That said, I do not find Moldaver J.’s concerns raised under the rubric of the proposed “substantive equivalency” test at all compelling.

[192]                     First, I would not conclude that police sought a general warrant in this case as a “convenient way” to avoid the rigours of Part VI.  Of course, there is no evidence of that.  Second, I do not agree with the claim that the privacy interests at stake in this case are exactly the same as those in issue where a wiretap authorization is sought.  The reviewing judge accepted, and I agree, that warrants could issue daily to provide the police with copies of the stored messages.  I fail to see how the affected privacy interests are different if permission to do that is granted two weeks in advance.  Third, for all of the reasons identified by the reviewing judge, the general warrant was a more practical approach than a series of production orders. Fourth, the general warrant authorized a technique that was not only different from an interception but was also more responsive to the needs of police. In particular, it significantly reduced the burden on the police in terms of resources to staff a wire room, and to extract information from subscriber records and dial number recorders.  As I see it, the general warrant achieved the legitimate aims of the police investigation in a much more convenient and cost-effective manner than any other provision would have allowed.

[193]                     Of course, the general warrant had the effect of shifting costs to Telus. But that has nothing to do with the privacy interests of the subscribers. Moreover, Telus advanced evidence and argument in relation to the burden the general warrant placed on it, but those submissions were flatly rejected by the reviewing judge and not renewed in this Court.

[194]                     On the record before us, I do not see evidence of “misuse” of s. 487.01 or an attempt by police to “escape the rigours” of Part VI.  What I see is effective and practical police investigation by a relatively small municipal police force which is fully respectful of the privacy interests of the targets of the investigation and other Telus subscribers.

C.    Conclusion

[195]                     For these reasons, I find that the general warrant did not authorize an interception requiring a Part VI wiretap authorization and that the “no other provision” requirement of s. 487.01(1)(c) was met.

IV.    Disposition

[196]                     I would dismiss the appeal.

APPENDIX

Criminal Code, R.S.C. 1985, c. C-46

PART VI

INVASION OF PRIVACY

  1. In this Part,

. . .

“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;

. . .

“private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;

. . .

  1. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,

(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

(3) A private communication intercepted by a person referred to in paragraph (2)(e) can be used or retained only if

(a) it is essential to identify, isolate or prevent harm to the computer system; or

(b) it is to be disclosed in circumstances referred to in subsection 193(2).

. . .

  1.      (1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by

(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,

and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:

(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

(d) the type of private communication proposed to be intercepted,

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

. . .

(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

. . .

  1.      (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

. . .

(4) An authorization shall

(a) state the offence in respect of which private communications may be intercepted;

(b) state the type of private communication that may be intercepted;

(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

(d) contain such terms and conditions as the judge considers advisable in the public interest; and

(e) be valid for the period, not exceeding sixty days, set out therein.

. . .

  1.      (1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully

(a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or

(b) discloses the existence thereof,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;

(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;

(c) in giving notice under section 189 or furnishing further particulars pursuant to an order under section 190;

(d) in the course of the operation of

(i) a telephone, telegraph or other communication service to the public,

(ii) a department or an agency of the Government of Canada, or

(iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2),

if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e);

(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or

(f) where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under section 12 of the Canadian Security Intelligence Service Act.

. . .

 

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