In need of a search strategy for electronic evidence
February 7, 20177 February 2017
In recent years, the Supreme Court of Canada has tackled the evidentiary and privacy concerns around cell phones, the internet, and third-party data disclosure.
But are the courts really keeping pace with advances in technology?
It wasn’t until 2013, in R. v. Vu, that the top court recognized that a computer isn’t like a cupboard — and, as such, isn’t covered under a search warrant for a residence. It noted, “privacy interests implicated by computer searches are markedly different.”
Only in 2014, in R. v. Spencer, did the Supreme Court rule that warrantless requests for suspects’ personal data to telecommunications providers amounted to a circumvention of the lawful order process — and were therefore unconstitutional. The court, then, concluded that “particularly important in the context of Internet usage is the understanding of privacy as anonymity.”
And it was only just last year in R. v. Marakah that the Ontario Court of Appeal endorsed the view that, once a text message arrives at the phone it was intended for, “[t]here is no longer any reasonable expectation of privacy in the sender.” It’s been years since text messaging has largely supplanted phone calls as the default mode of communication for a huge swath of the country.
Obviously, the appeal process takes time and the judiciary cannot be blamed for the state of affairs. Still, the tension between the technological reality and guidance from the courts on what is, and isn’t, constitutionally permitted search and seizure was the topic of a panel at a recent Osgoode Law School symposium on technology and law.
“The law is always lagging so far behind,” said Gerald Chan, who practises criminal and constitutional law at Stockwoods. Chan’s advice? Lawyers need to get up to speed not just on the case law, “but what’s going on around it.” That means the technology itself, and the legal conversations over it.
Chan provided a list of considerations that defense counsel ought to be thinking about for which there is little, or no, direction from the higher courts on.
For example, if the Crown enters a computer file into evidence, lawyers need to be thinking about the file pathway — “where in the devices they were found, what the folder structure looks like; were they user-controlled file folders? Or were they user generated? What were the other files?”
Then there are questions over how police can obtain a suspect's data from a foreign-based company — should they be using a Mutual Legal Assistance Treaty (MLAT) to request the data from the foreign-based company, or should they serve a local office of the company?
While MLATs can be timely and uncertain, trying to obtain foreign data through a domestic company can open a can of worms. “There are real concerns here of comity and sovereignty, if you’re compelling a company, just because it has domestic presence, to turn over data that’s stored in a foreign jurisdiction,” Chan says.
The lack of direction on the more advanced cases might be difficult, but as Crown Attorney Susan Magotiaux pointed out: This lack of direction really can apply to any case.
“How many relationship assaults would have something with Facebook in it?” Magotiaux pointed out. “Those are the basic, everyday trails of evidence that happen in every case.”
And given those trails of evidence that have yet to have their paths drawn up by the top court, lawyers ought to be careful.
“You can’t just write: I’m looking for all of his computers,” she said. Lawyers and cops need to get very good at specifying what they’re looking for, and excluding what they’re not because — while many judges might be less than up-to-snuff on issues around digital privacy — any case could get derailed by a Charter challenge over an over-broad search.
“Try and link what you’re looking for with your actual grounds,” Magotiaux recommends. “While recognizing that you might need a broad scope of information, the goal is to minimize what you’re getting, minimizing the intrusion in privacy.”
To that end, she adds, it’s time to kill the cupboard analogy — or, really, any analogy. “Analogies get us in trouble a lot, whether it’s ‘the cloud’ or a filing cabinet, none of them work.”
David Cobey, who works on the Legal Application Support Team at the RCMP, says the courts aren’t entirely sitting on the sidelines. “Although the law may be behind technology, the courts are trying to give investigators some kind of guidance.” A perfect example, he says, is the recent Ontario Superior Court ruling in R. v. Rogers Communications on cell tower dumps. There, the court writes a very instructive seven-step process in writing a warrant to pull phone data from a cell tower. Lawyers across Canada should be looking to other jurisdictions for some of that guidance.
Cobey raises what may well be the next big concern for the courts — whether a warrant covers live data. That is, if police seize a device that remains connected, or if they obtain an accused’s password, should they have access to the data that comes in after the seizure? “That is more active that seizing and analyzing later,” Cobey points out.
Magotiaux adds: “There is debate whether an intercept has to be contemporaneous.” Another consideration? Does accessing live data on a telecommunications provider’s server require a production order, or an interception order?
That sort of “gray area” is exactly where that litigation could be focused.
That gray area is just one on a long list that includes the use of Stingray phone-tracking hardware, compelled decryption, forensic phone-mapping technology, and so on.
There is one solution. As the Ontario Superior Court contemplated in R. v. Rogers, “whether to impose this type of general requirement, which imposes strictures on how the police investigate crime, is properly and best left to Parliament.”
With the Trudeau government’s national security review having just wrapped up, and with legislation expected this spring, Ottawa may well take that invitation.