 I want to thank you for coming out to the first installment for this year of the Law and Debt Institute's End-Ment Speaker Series. My name is Rob Curry. I'm the director of the Institute for those of you who don't know me. We do this on an occasional basis throughout every year. We bring in speakers both local and national, and sometimes international, in order to facilitate dialogue about law and technology related matters. Today we've got a great speaker and a great topic. Our speaker has cautioned me not to go on and on introducing her, even though I could. So I will just say a few great points. McAlfair Murray is originally from the bustling community of Beaverton, Ontario. He's a graduate of the U of T Law School and went from there to the Crown Law Office of the Ministry of the Attorney General in Fort Ontario and was there for 22 years, by mistake. Over the course of those 22 years, she became one of the leading criminal lawyers in Canada, has gone from place to place educating criminal law adherents, flight judges, and lawyers, and is well respected for it. But a year and a half ago, I'm going to say she made the leap to the other side of the yard. I'm not going to make any comments about good, bad, evil, good, any of that sort of thing. She's now on the other side of the divide with the defense practice at the firm stock was in Ontario in Toronto. So without any further ado, I'd like to introduce McAlfair Murray. Thanks very much. Thanks, Rob, for the very kind over-the-top introduction. I'm really delighted to be here to be speaking about this issue of technology and criminal investigations. We've seen a significant increase in the use of technology in criminal investigations and in prosecutions in the last number of years. And indeed, I don't think it would be an overstatement to suggest that it is today the rare criminal trial that doesn't have some form of technology in some fashion inextricably linked to it, either in the way that the crown is prosecuting the case, the defense are defending it with the use of technology, what's going on in the courtroom, and certainly the evidentiary platform that comes before the court and how it's been developed by the police, which raises all kinds of fascinating constitutional issues. We live in a world of technology and I don't need to tell anyone in this room that we all use it. We play with it, we work with it, and we can't live without it. And we've seen it seep into our lives so much so that there are actually significant statistical databases out there now about the use of technology throughout the world and I'm just going to quickly go through some of those statistics. We learned actually earlier this year in January that there were 10 billion devices in the world connected to the Internet and in fact that number is estimated to increase to 50 billion by the year 2020, which is to me a remarkable statistic and you kind of wonder well how can it so far exceed the population of the world and I think the answer to that is there's so many devices on the Internet, people have multiple devices at a time. Think about and certainly I know the young people in the room probably have more than one device. We've got our ORC, how I included myself in that young person category. But you know we have our iPhones, we have our computers, we have our iPads and so on. It's not unusual for people to have three, four, five devices at a time that are all Internet accessible. And we now communicate on electronic devices and that's just the reality. Whether we're Skyping, we're emailing, we're text messaging, we're Twittering, we're Instagramming. The reality is that we have moved not completely away but somewhat away from the world of verbal communications and into the world of telecommunications and communicating with one another in the written form and largely through acronyms. And we've seen a number of other statistical developments in this environment. For instance, one billion people, I find that incredible, one billion people are actually on Facebook. Think about that number, it's a staggering one and I think it makes Mark Zuckerberg very, very happy. In 2012, look at the statistics up on the screen in terms of Twitter users and what's being sent every two and a half days in tweets. Again, just a staggering number, what did we do without tweeting? How did we ever communicate with each other? I mean, how did we know what you were doing every second of every day? How did we know you're off to class now? There's critically important information. How did people convey that before Twitter? And then, of course, these every 60-second statistics are the most staggering, without a doubt. Look at the hours of video that are uploaded to YouTube in a 60-second period. Over 200 million messages are sent by email every 60 seconds in the world, incredible. Google receives over 2 million search queries in a 60-second period in the world. These are, again, just incredible stats and it demonstrates, I think, and informs as to why it is that technology has become so inextricably linked with criminal investigations. Police are embedded in the technology community. They are embedded in an undercover way in the technology community and in seizing and searching devices. And I'm going to get into that. But before I do, I just thought I'd mentioned Riley in California and the sister case of worry. Because if you haven't had a really fun time reading a case lately, I really do commend this particular judgment to you because it is just such a treat to read, especially when you think about the fact that five U.S. Supreme Court judges were born just before or during World War II. And they're talking about cell phone technology. And they get it. They get the privacy issues engaged with the technology. But I love the stat coming right out of the judgment. I mean, did you know that 90 percent of adult Americans are carrying a cell phone? Three-quarters of smartphone users are within five feet of them. And then, of course, 12 percent are using them in the shower. Now, I don't know if anybody wants to discuss that statistic here in a public format. I don't know what people are doing with their iPhones or smartphones in the shower. I really can't imagine. But if, you know, maybe to others that 12 percent stat, one out of just slightly over one in ten and a hundred people or one in ten have their showers in the phone with them and are using them. Odd, I think. But in any event, it shows how tethered we are to our technology these days. So how has this impacted criminal investigations? We've seen an evolution in the way the crime is committed. And that's no secret. We're actually seeing crimes, old crimes being committed in new ways. So fraud, we used to speak of boiler rooms, these big international fraud schemes that were crossing borders, but crossing borders over the telephone from a boiler room where a bunch of guys, usually guys, up to no good were making calls and relieving others around the world of their money. That's not happening in a boiler room anymore. That's actually happening on the internet now real time. And it's being facilitated by the internet because these fraudulent entities can actually set up websites that look like real websites. That look like, you know, sitting in Toronto, Canada. There's a big office building that actually is owned by a company where 300 employees look and it's beautiful and glossy. And that website looks real. And in fact, that is a post office box when the person from Australia can't get them back on the phone after they've sent $100,000 and decide to fly over and find the building and find it's actually not a building at all. The internet's facilitating that kind of thing and it's made for certain investigative challenges. Child pornography is another obvious area where crime has evolved with the use of technology and the trafficking in child misery around the world has increased as a result of the internet and what can be sent anonymously on the internet. We have new crime and here in this community I don't need to remind anyone about the obviously the catastrophic events that can result from cyberbullying being the home of Retea Parsons and this kind of new crime that we're experiencing as a result of the use of technology. And other forms of crime. The Parliament is currently in the process of addressing through Bill C-13 which I'll return to close to the end of my chat. How are the police investigating in this new world of technology? There's a significant and obvious shift in how they're going about their work. They clearly have an unprecedented window into people's lives, a window that they didn't have before because people are now communicating in permanent electronic records. Used to be that part six of the criminal code was, and that is the electronic surveillance part of the criminal code, was all looked toward intercepting private communications in the form of oral communications by way of planting probes in residences or private locations, motor vehicles and so on or intercepting phone lines, hard land lines. And today the police are much more inclined to be looking to that part of the criminal code in order to intercept private communications but ones that are already committed to a permanent electronic record because of the way people communicate. Seizing their email communications, seizing their chats with others in certain environments that could be considered private. So there's evolving investigative techniques that are being used. Police are constantly online in an undercover capacity. You have old male police officers who are posing as young, beautiful teenage girls actually pulling in the men, often men, online who are looking for young teenage girls and this is the new undercover work that the police are involved in. They can now pass themselves off online undercover in a way that they could have never passed themselves off in the past and we see a host of that kind of activity going on. We also see the police using the community through the use of technology in new ways to solve crime or at least just taking advantage of the technology that's already being used out there. And we saw an example of this in the tragic events in Moncton, New Brunswick back earlier this year. We saw it during the Stanley Cup riot and in fact I have a little clip of that one that I want to show to you. It's just come up on the screen here. The use of technology in criminal investigations is so impressive. What they can do now is stitch together and this is a Vancouver police image. They asked the community to come together, give them their photos just before the riot broke out and they did that and they actually stitched together well over 100 photos to come up with this incredibly clear image and when you actually come in on this image you can start to see faces with unbelievable clarity because of what the public provided to the police in the wake of the actual riot and then the police asked, go in and see if you recognize anybody and if you do, Facebook tagged them for us. Would you mind? And so that is precisely what the public did and if you look at this image and it's full glory you will see there are hundreds of bubbles, Facebook bubbles over people's heads just like this one for poor Josh Ming. Now I'm not suggesting Josh Ming, whoever he is, was involved in criminal wrongdoing that day but if he was, I think it's a safe bet that the police were probably going to get him because what they could do then, because one of his friends clearly decided that they do the police a great service and Facebook tagged him. There you go. There's Josh Ming and there's his Facebook profile. Kind of easy for the police to figure out who he is, where he is, what he's about and to come knocking if they wanted to do so. So the police are using, they're using technology, they're using the public through the means of technology in order to solve crime and identify those believed to be involved in crime these days. I just want to get back to the other slide. Alt-Tab. Alt-Tab and click it from the bottom. Oh, I see. Right here? Yeah. Okay. Ah, I got it. Okay, thank you. So that's the world we're living in and the reality is we all know, it's no surprise to anybody in this room that we leave a digital trail everywhere we go. This is huge business for some companies. And you can see up on the screen here that there are some private data mining companies who are actually boasting these kinds of statistics for that many internet users in the world. Huge business. And how do they collect 1500 data points in relation to 500 million active consumers around the world and leave an electronic trail every single time we get on the internet? And there's virtually no way of avoiding that. It's called metadata. We all know that metadata is data about data. It gives information about who's communicating with who, when, for how long and so on. It's quite simply not benign data, no matter what some may suggest. It's not benign. If you look at the statistical research that's been done and you look at all kinds of studies that have especially been done by MIT, you're going to see that they have discovered that just four data points, leave alone 1500 data points, four are going to give you with 95% accuracy the actual identity of the owner of a phone. And in fact they've recently determined that sexual orientation can be determined simply by a few points of metadata. This raises real issues about privacy in this new world of technology and how it is that we can protect our privacy. The law enforcement know that there is a gold mine in this technology. They're well aware of it and in case we have any doubt about that, we can just look at the statistics that have been released in the very recent past by the Canadian Wireless Telecommunications Association where they have suggested that over a million requests are put in from state actors every year for certain information as it relates to telecommunication of their clients. Some of those requests are going to be urgent requests done without any prior authorization. Some until the very recent past with the Spencer judgment which I'll come to in the Supreme Court of Canada would have been for just customer name address information and some requests are going to be to penetrate even more detailed information but over a million a year think about our population in Canada and think about that statistic against our population. Law enforcement love this world of technology that we're living in and it has made their jobs much easier and it's made it easier because people are using the technology and they're using it not very smartly quite often. Being a former prosecutor I can tell you that in a lot of gun cases that you prosecute for whatever reason guys like to take pictures of themselves with their guns. Thank you. Leave it on their cell phone device and there it is. The privacy question is whether the cell phone device has to be seized and searched with prior judicial authorization which we'll get into but the reality is it's there and at some point maybe people might wake up a bit but this is the world we're living in and this is the conundrum for people given that technology keeps a record everywhere. So that's the question has privacy been overtaken and do we really have privacy in this world of technology that we're living in? Mark Zuckerberg the founder of Facebook made a very controversial statement just a few years back where he said privacy is no longer a social norm. Interestingly enough he made that statement just before he bought up his four neighbor's properties around his house for millions and millions and millions of dollars because clearly for him privacy is a social norm and he'd like to keep it that way but he questions that in the world of technology and Scott McNeely in charge of Sun Microsystems made a similarly controversial statement back a little bit previously about ten years ago actually just previous to Zuckerberg saying you have zero privacy get over it. I mean is that true and it really begs the question whether we're living in this world of Orwellian despair is there any hope for privacy as we go forward and I'm going to suggest that given what we've been seeing evolve from our Supreme Court of Canada in the recent past and in this world of technology as they are starting to come to grips with it that they are fighting back and that they do have a vision of privacy even in this new world and they're not prepared to give over to these rather fatalistic statements by the likes of Zuckerberg or McNeely or even George Orwell. So Section 8 of the Charter is where all this action is happening and we know all too well what Section 8 what the right is in Section 8 in terms of keeping us secure against unreasonable search or seizure but what does that mean in this context and we learned in 1984 the very simple proposition out of Hunter and Sodom that if you have a reasonable expectation of privacy then the state needs prior judicial authorization before they can interfere with that expectation of privacy barring warrantless search doctrine being operative and the warrantless search doctrines tend to be or the most commonly resorted to ones tend to be these up on the screen so if there's consent there's no need for prior judicial authorization if something's been abandoned like garbage out at the curbside not on the property so there's a territorial privacy issue but at the curbside you've given up your privacy interest in it exigent circumstances are always going to overtake the privacy interest where they're sufficiently exigent where the police haven't triggered the exigency sufficient to allow for an interference with a privacy interest without prior judicial authorization but for the most part unless one of these warrantless search doctrines are operative prior judicial authorization is needed where there's a reasonable expectation of privacy but when is there a reasonable expectation of privacy is the question and the court has grappled with that concept over the years we all know the Edwards judgment from 1996 where the court spoke of the subject of privacy interest of the individual as objectively informed by the totality of circumstances so if an individual has a subject of privacy interest it is objectively reasonable in the circumstances at play then there is a reasonable expectation of privacy the person becomes cloaked in section 8 charter protection and barring a warrantless search doctrine or prior judicial authorization the state interference without privacy interest will trigger a section 8 breach but is that simplistic analysis coming out of Edwards that took root in 1996 and served us well I think served individuals Canadians well for so many years does it work in this day and age to ask do you have a subject of privacy interest as objectively reasonable in the circumstances does it work in the age of technology and I think what we're learning from our Supreme Court of Canada is that it has to be a much more nuanced much more complex analysis that gone are the days of the Mr. Edwards who was an individual charged in relation to a drug and weapons related matter he had stored some of his things at his girlfriend's apartment and out of that factual scenario where territorial privacy not informational privacy but territorial privacy is at play you get this analysis but does it work in the context of informational privacy and we've recently seen in the Spencer judgment in the Supreme Court of Canada was just released earlier this year in June of 2014 that it does have to be more nuanced that it's not just about those factors that we have to really ask ourselves and I'll return to this theme but what do we as a democratic nation deserve and want in terms of our privacy interest so when we're looking at a case like Spencer Mr. Spencer was charged and ultimately convicted of trafficking in child pornography a lot of these technology cases sadly and disturbingly arise in the child pornography context he was concerned he was section eight concerned because what happened was information came into the possession of the police that a certain IP address internet protocol address which is three digits period three digits period three digits it's just a number that that address was associated with child pornography the police through public means were able to determine where that address was associated to and which service provider go to the service provider and make what's at the time called a law enforcement request an LER the acronym for it and that law enforcement request was as simple as tell us the name in the address associated with whoever it is that belongs to this IP address that simple so all the way to the Supreme Court of Canada and the question is is a name and an address privacy protected does it deserve section eight charter protection and if we think about it through an Edwards lens that simplistic sort of can you have a subjective privacy interest in your name well I don't think anybody's name in this room is a secret you're given a name for the precise reason that we can all address each other by name that's that's the whole point of having a name same thing with your address you take mail at your address you entertain visitors at your address you know people come up and knock on your door your address tends not to be private but Supreme Court of Canada said when assessing all of the jurisprudence that came before on this point because it was quite divided around the country ultimately said that misses the mark that's not what it's really about it's about ensuring that we as Canadians can maintain a sphere of privacy despite the advances in technology and this isn't just about a name and address this is about a name and address that is going to tell us something about what that name does on the internet and it is the connection of those two concepts that for the Supreme Court of Canada was the concern and therefore the privacy interest was engaged under section eight of the charter and it is the court saying essentially that in this age of technology we need to be more nuanced we need to be more careful about how we approach these issues to understand the technology and to understand ultimately as a democratic nation what is at risk and so the court in Spencer but also in other cases dealing with technology in the last few years has started to come to grips with both the quantitative and qualitative differences in technology in iPhones, in computers, in iPads all of these technological devices we use and their potential to tell the state something about the individual because after all a cell phone in today's day and age for the most part certainly an iPhone certainly a smart phone is not just a phone it's a library it is a photo library it might have every single photo near and dear to your family's life on it it is going to have messages on it it's going to have text messages on it it's going to have email communications on it and on and on and on and it's not simply good enough to just call that a phone now because it isn't just a phone we saw in the VU judgment last year the Supreme Court of Canada come to grips with this through the unanimous judgment of Justice Cromwell and in VU the issue was as follows Mr. well there was a grow up big surprise in Vancouver in a residential address and the police went in with a warrant the warrant had on it among other things on the shopping list on the face of it that the police could search for and seize any documentation relating to essentially ownership and control that's what ultimately the cops are wanting because that's how they're going to determine who's responsible for the grow up the cops go in they haven't asked on the face of the warrant and haven't received authorization to seize any electronic devices so they go in and they at lo and behold they find a computer in fact they find a couple of computers and they also find a cell phone and on one of those computers Mr. VU had the great misfortune of having some information that clearly identified him including a resume and I guess he was looking for other lines of employment as well so he took issue with this in the trial court and actually had great success in the trial court in suggesting that well there wasn't a computer on the face of the warrant and therefore it's breached my Section 8 interest the issue though was one of plain view because we all know that on the face of a warrant as long as the police are lawfully positioned in the home which they were in this case they can seize anything that is in plain view not VU plain view in relation to what it is that they're investigating as long as it's related to that investigation and in this case that was the crown's position well you know what the computer was there this had this relevant information on it it's clearly like a document related to possession and control and we could take it and the court says no that's not going to work in this age of technology and it's not going to work in this age of technology because computers are quite simply different and we're not going to treat them like other things computers are different because A they store an immense and I think that probably is an understatement but an immense amount of information they're also different because they store information that the user doesn't even know they're storing so what's in the cache of a computer every search that you've done unless you're deleting your searches and frankly even if you're deleting your searches they're probably there to a creative and productive and motivated investigator forensic computer investigator after the fact you try to delete a file on a computer it's not deleted it's going to sit in the residual area of the computer and it's going to sit there for the rest of time unless that space is needed on the computer you can't really delete from a computer which is precisely why as a defense lawyer you know I've learned from all my previous life and work as a prosecutor that I would never tell a client to take their computer to get it fixed if your computer has a problem just okay the computer is done go get a new one don't get rid of the computer into the basement done so you everything is going to be there is the operative assumption for the rest of time and then finally what is the location of a computer the spin court can has recognized I think in a fairly sophisticated analysis that the location of computer is so unpredictable it's not just the physical device it's whatever the physical device is connected to and what a gold mine for the police is that the cloud if the computer is connected to it that is also information that's accessible to law enforcement whatever you have access to buy your computer and wherever you've stored your information whatever that cloud is wherever that cloud is is also going to be on essentially that computer when the police go into it so the court has said we're not going to treat computers like filing cabinets because they aren't like filing cabinets we're not going to treat them just like photo albums because they're not like that they are different and they are deserving of different rules and we're starting to see this evolution of new rules come out of the Supreme Court of Canada so in view the answer was while the police could take the computer and the electronic devices from the home and store them in some police facility serving the integrity of the possible evidence on the device they had to go and get separate authorization to enter the device which begs the question what does that authorization look like and the police are now really struggling with trying to determine how to apply for warrants in order to enter these electronic devices in a way that's going to comply with technological demands including whether or not they should have protocols about how the search goes down in what way it goes down in view there was a suggestion that protocols are not constitutionally required but they might be a good idea when usually when the Supreme Court of Canada says not constitutionally required but might be a good idea that's a hint in terms of how the jurisprudence is going to evolve and I think law enforcement would be wise to be going down that path now coming back to Riley for a moment I just thought I'd point out that our court a much younger and more vibrant court than the US Supreme Court is completely in sync with the US Supreme Court so we're just as Cromwell on the previous slide in view said these are all of the differences between electronic devices and other things that the police are dealing with and seizing in Riley I thought Chief Justice Roberts really made a very interesting and gripping statement here when he was commenting on the prosecutor's position in Riley that a cell phone seized incident to arrest is materially indistinguishable from searches of other kinds of physical items like for instance address books and so on and the Chief Justice said well that was like saying a ride on horseback is materially indistinguishable from a flight to the moon both are ways of getting from point A to point B but little else justifies lumping them together and this is definitely an instance where both Supreme Courts seem to have come together in terms of their thinking on that issue Morelli really started the ball rolling in this area of technology from the Supreme Court of Canada so in 2010 and you know I think historically it's very interesting to observe that this is the first important technology case from the Supreme Court of Canada and I think it caught everybody off guard and you know that to be the case because look how many Attorney General interveners there were in Morelli, zero, nobody saw this coming it looked like a standard CP child pornography case it looked like it was just going to be run in the mill it was going to be looking into what the grounds were for an information to obtain a search warrant related to a computer maybe a few kind of interesting but old hat 24-2 issues whatever Morelli comes out in the legal world from a technology perspective was really shaken because the first few paragraphs of Morelli tell the story it's Justice Fish and he says clearly and loudly that it's difficult to imagine a search that is more extensive or invasive than a search essentially of a private computer and I think we could debate about whether there's more invasive searches I've always thought Mr. Greff who was the subject of a body cavity search at an airport might take some issue with whether or not it's you know difficult to imagine a more invasive search than of a computer he might have chosen his computer given the choice to be searched but in any event it is a demonstration and I think a very clear demonstration that the Supreme Court of Canada is prepared to protect technology that they are concerned with technology and they're concerned with where this is all going to take us in terms of our privacy interest if we don't get on top of it and we have seen this statement restated by the court since Morelli in a number of judgments including the cold judgment which I will come to so what's this done to the Plain View Doctrine I've discussed VU and the new approach under VU I just wanted to very quickly advert to the FIERON judgment which will be coming out of the Supreme Court of Canada coming to a home near you very soon and FIERON is going to tell the story in terms of whether we're going to have a new search incident to arrest doctrine in the context of searching cell devices so the search incident to arrest doctrine is as old as the hills in this country we know it well it is a doctrine that says that when an individual is lawfully arrested that they can be searched and things in and around the immediate vicinity of the individual can be searched as long as there is essentially a nexus between the purpose of the arrest it is lawful the lawful arrest I should be clear and the purpose of the search please don't need reasonable grounds to believe that what they're searching is going to yield evidence of the crime they can simply search it as long as there is a nexus that nexus has to be attached to some form of evidence that might inform what they've been arrested for or it could inform safety concerns for public or police safety in the context of that arrest but that's in essence the doctrine fast forward into the world of technology we now live in and individuals who are getting arrested not surprisingly have cell phone devices on them all the time now that's just the reality one of the first things I learned when I went into defense work over a year ago now is to tell a client who's going to turn themselves in don't go in with any devices on your body do you understand do you leave your cell phone at home leave your blackberry at home leave your ipad everything don't go near the police with your electronic devices because they can clearly seize them that's not the debate the debate is whether they can search them without prior judicial authorization and Fearon will resolve this debate there is divided jurisprudence in this country on the issue of whether the historical search incident to arrest doctrine applies or whether we need to tweak that doctrine for purposes of electronic devices my bet and I actually don't typically bet on Supreme Court of Canada cases because I'm often wrong but on this one I really really think that the Crown is going to probably not succeed in their position on this that the cell phone device seized incident to arrest is deserving of the same treatment as everything else seized incident to arrest I think there is going to be a requirement for prior judicial authorization to get into the device I do think there's probably some reasonable debate to be had in terms of whether the police can take a cursory look at the device at the time of arrest but my prediction is that probably we're going to come out with a rule that is specific to the world of technology and one that very much aligns itself with what we've seen in view in these new rules that have evolved in terms of coal I think this some might suggest and I don't think unreasonably is perhaps the high watermark of where the Supreme Court of Canada has been in this new world of technology simply because of the facts that underlay this judgment again of Justice Fish of the Supreme Court so Mr. Cole as you may know was a high school teacher and he was issued a laptop through his employment so it wasn't his laptop it was the board's laptop and he was also bound by certain contractual agreements which is a fascinating area in this evolving jurisprudence in terms of how much the contract plays into informing the privacy interest so he's got these contracts and they include things like you can use your laptop for your own personal things but bear in mind that essentially the information on the laptop can be accessed at any point that's in a nutshell it's a little more complex than that but in a nutshell I think that covers it and when it comes to Mr. Cole's computer true to what the authorized user agreement said his laptop information was accessed at one point by someone cleaning up the school's electronic information because there was something going wrong in the system and everybody's information was being looked at and what the problem was and lo and behold Mr. Cole has child pornography Mr. Cole the teacher has child pornography on his school computer and oh by the way it was actually child pornography of a student in the school okay so I think those are pretty interesting facts to assess the privacy interest against and yet despite all of that and that backdrop Mr. Cole was found to have a privacy interest in his computer and we saw this statement of Justice Fishes come out of Cole that his personal use of his work-issued laptop generated information that is meaningful intimate and organically connected to his biographical core now that's a big statement in my view against this factual backdrop we all know about information connected to a biographical core that's language that the court in Cole has taken from the 1993 judgment of the Supreme Court in Plant again a marijuana grow operation Mr. Plant had the perfect name for that case I think his name actually was enough to get the warrant in that case sufficient grounds but you know the court's actually up the ante here we're no longer talking about information connected to a biographical core we're talking about being organically connected to the biographical core and in this context and so I think the point is the lesson arising out of Cole is very much that the court's serious about this technology that they are pushing back on these attempts by law enforcement to penetrate this sphere of privacy that the court is giving a generous interpretation to and they're prepared to apply Section 8 in a way that historically might not have been done if you apply a true Edwards analysis to those Cole facts I'm not sure we would have ended up where we are in Cole today just that standard did Mr. Cole really have a subject of privacy interest in that computer it's a school computer the court was prepared to accept that he did but was it objectively reasonable or is this more about the normative approach to Section 8 of the charter and I think we're starting to see in the jurisprudence the evolution of this concept of a value laden approach to Section 8 of the charter who do we want to be as a country what do we want to be as a country how does privacy intersect with that and so the richest discussion of that and I'm going to give you a slide in just a minute is actually most recently in Spencer but I think we're moving toward and some might even say back to this normative approach early in the 90s Justice Laffer Ray who I consider to be one of the greatest visionaries when it comes to Section 8 of the charter and who we owe a huge debt of gratitude in the early days in terms of the evolution of this area of the law I think predicted that we were going to ultimately get into these issues and he was supportive of approaching the Section 8 of the charter in a flexible way in an open and broad way and in one that ensured that we maintained our free and democratic society and so we can see Justice Laffer Ray in the Wong judgment and Wong I'll remind you is the case is I'm sure you know where you have the individual who's rented out the hotel room it's essentially running a gaming operation from the hotel room and there's a real issue about whether or not even though you're inviting others to come into a hotel room that's being used as a gaming operation whether or not there's a privacy interest in that hotel room and ultimately Chief Justice Laffer and Justice McLaughlin then was they hook up together in the majority judgment to find there wasn't one but Justice Laffer Ray on his own here talked about and this is in 1990 remember talked about keeping pace with technological developments and making sure that we have an approach to Section 8 of the charter that is going to take appropriate care of the advancements in technology as they come up and back then he's talking about a very rudimentary camera that had been installed in a hotel room almost 25 years ago but we saw this theme start to come up again in Tessling where Justice Binney called it and Tessling is the floor case forward looking infrared technology was used in order to again look to heat emanations from a roof in the context of a grow-up investigation and Justice Binney talked about the expectation of privacy being a normative concept and it's not simply a factual inquiry it's not just simply a descriptive standard it's something where we have to determine who we are and what we want to be Justice Binney again and Patrick revisits this concept and Patrick is the garbage case where the garbage is left out at the curbside and the issue is whether or not the police by reaching into the territorial privacy of the individual and quite literally the police had to reach across the property line to pick up those bags of garbage and haul them away whether or not Mr. Patrick had a privacy interest in the territory in that airspace that they reached into to grab the bags that had been left at the curbside but technically on his property and whether or not he had a privacy interest in the information yielded from the garbage and ultimately the court decided that he had abandoned the garbage and he didn't have a privacy interest but nonetheless there's a beautiful discussion in Patrick by Justice Binney about what sectionated the charter is about and being concerned with the long-term consequences of judgments from the court and how they're approaching the privacy analysis so again moving a little bit away from that rigid Edward's analysis that theme of subject of privacy interests as objectively assessed with the constellation of factors and to this almost second analysis after you go through all of that asking yourself about does this fit with who we want to be, what we want to be and then we have Ward and Justice Doherty decides Ward in the Ontario Court of Appeal just back a few years ago and it raised the Spencer issue it is the customer name address case and it was probably the most significant one before the Supreme Court of Canada determined the issue in Spencer and here Justice Doherty made certain observations about value judgments how he interpreted what Justice Binney was saying in Patrick and indeed in Tessling what he meant by a normative approach and how we should now be approaching sectionated the charter in this world of technology and ultimately he decides that really sectionate should engage in the analysis this whole issue, this whole question about what we want to be in contemporary Canadian society bearing in mind all of these advances in technology and with that analysis he is clear that we have to move on from Edwards we have to be true to Edwards but we have to really look at this second step even after we emerge from an Edwards analysis and Justice Cromwell and Spencer picks it up he agrees with Justice Doherty, he applies Ward and gets to the ultimate conclusion which is really foundational in terms of where we're at today I think sectionated the charter in terms of technology that you can actually have anonymity it is a constitutionally protected interest and it's anonymity in public spaces public spaces on the internet that you have a constitutional right to that and that's new and in my view that's a seismic shift in the law and it's an important shift in the law because it creates all manner of interesting investigative challenges for the police in terms of how they approach their work I think this is just the beginning of a wave we're going to see all kinds of issues now arise out of other forms of investigative work in the area of technology think about the undercover police officer who's online speaking to somebody the officer is anonymous the individual he or she is speaking with is hoping to be anonymous, wanting to be anonymous is there a penetration of their constitutionally protected right to privacy in that environment and I think we're going to see this as the beginning of a new concept I think there's, especially for younger people in the room all kinds of work to be had there no worries you're going to be gainfully employed for a very long time and what Justice Cromwell ultimately looking at the bottom of the screen has said in Spencer is that this is a significant privacy interest it's not just a privacy interest it's a significant one, the right to anonymity why am I having trouble with that word today somebody else say it for me next time in the technological environment and that it is important to our ability to flourish essentially the individual flourishing in a democratic society so where does it leave law enforcement it leaves them with a lot of uncertainty I think and it leaves them with a lot of work to do all of these cases combined I think lead to a conclusion that law enforcement would be well advised when dealing with technology and we'll see what Thearon says it's not going to be much longer I think we're going to see it pretty soon but they'd be well advised to use prior judicial authorization I sometimes wonder from a practical perspective how protective that is for the individual you know perhaps this is just putting my old hat on but you know law enforcement thinks that the sky fell when Vu was decided when the court said oh computers are different electronic devices are different and therefore you know you can take them you can secure the integrity of them but you have to get a warrant before you enter them but the warrant is going to be obtained and you know there's no question the grounds are there when you have a computer device in a location to be searched and you're looking for documents that have already been authorized to be seized chances are that computer at least there's going to be credibly based probability which is the threshold that they have to rise to in order to get prior judicial authorization it's going to be met so it really begs the question what is the point well the point is Hunter in Southern says you need prior judicial authorization to go in and that's important and we have to stay true to that but at the end of the day it's a ton of work for law enforcement and to what end I think the answer to the what end is ultimately going to be search protocols I think they're coming I don't think there's any question about it because if we're looking for one document related to possession and control for instance and you're entering a computer that has we all know if you printed everything out on that computer every single thing it is going to like they'll exceed the height of this building if you stacked it all up it's probably going to be twenty of these buildings protocols are coming and the court is going to be addressing that issue they have to be because it can't be that law enforcement can just go in and search everywhere for one document there has to be a meaningful way to limit that intrusion into that technological space to be more defined and careful in terms of what it is that they're searching for where does it leave parliament I think it leaves them with a lot of work to do right now parts six and fifteen of the criminal code are wholly inadequate to the task and I say with respect a ridiculous labyrinth of provisions these are only the sections that relate to things that you can get in order to get at technology there's all kinds of other as we know search provisions but within part six it's like a grand bag of potential sections in order to get at private communications through electronic surveillance but none of them are up to the task really of seizing email communications of seizing text message communications there is more time spent debating in law enforcement what the right criminal code provision is are we under part fifteen of the criminal code or under part six of the criminal code is this a private communication if it's a private communication is it one that has already crystallized in a form where it is sitting somewhere and can just be seized just like the old letter could be seized or does it have you know is it a real time communication we saw the court recently debate this in the last couple of years where a general warrant was used in order to get prospective what was thought to be prospective text messaging on a go forward basis and whether or not that was appropriate or whether it had to be a wire tap authorization the reality is parliament has to tackle this to the ground and they need to consolidate some of these provisions and they need to give a more meaningful approach even within part fifteen of the criminal code 487 it's your old standard warrant but you can seize computer data under 2.1 and 2.2 but you can also get it under 487.01 a general warrant and on and on and on they need to really provide more user friendly provisions and they need to be provisions that accommodate what information it is that the police are after so if we look at C13 and we all know C13 has in part the bill that is proposing the new cyber bullying provisions and that it would appear this government is quite keen on pursuing it also has all of these new provisions I mean I can barely count as high as these provisions but this is the idea they're all going to be inserted into part 15 of the criminal code and what I find very interesting every time I look at bill C13 is how many of those are driven by reasonable grounds to suspect threshold as opposed to a reasonable grounds to believe threshold and a lot of them are in relation to things like metadata and so on and again metadata is not really benign information and it begs the question is this going to be found to be institutionally appropriate or constitutionally up to the task in terms of the jurisprudence and certainly in terms of the way of the authorities that have been coming out of the Supreme Court of Canada in the last few years if it is in fact a passes and is proclaimed in force so that's really what I thought I would cover my hour this afternoon and I thought that we could just open it up to questions, comments have a bit of a dialogue about some of these issues and really feel free so let me jump in just to say that McAllister got on a plane at 430 so I'm going to say 10, 12 minutes or so for questions and she has to get into a cab and get out to our airport I don't know so yeah, we'll say 10, 12 minutes I'm happy I'm interested in your comment and assessment of the gombok case, the digital recording ammeter case where they went all over the map at least the majority did in terms of saying that there's no privacy interest and that there's a licensing agreement with Calgary Power and in the end the police can do what they want with the RAs so I found it actually a very interesting decision so the majority judgment of justice Deschamps speaking for four of them I thought was fascinating and I think it's a very important one I mentioned this contract situation and how it's informing section 8 in this context these days and I think gombok is the really the beginning of a very rich discussion on that issue because as Justice Deschamps said for the majority the is actually a regulation it's actually a legislation in the gombok decision so she's looking at that and she says well look, this is one of the factors that we're going to look at but it doesn't inform the privacy analysis in a dispositive way but rather becomes one of the things that we look at in this totality of circumstances and ultimately finds bearing in mind those totality of circumstances that there's no privacy or no interest I thought it was interest because Justice Abela in the minority judgment said no the legislation or the regulation at issue in gombok which is one that essentially says if you don't want us to share this information you need to tell us essentially, like who, I can't find a regulation that's what younger lawyers are for in my office find me the right regulations I mean, what member of the public knows what the regulation says really so, but she said Justice Abela, well, you know what that's dispositive of the privacy analysis and I thought that was very interesting when just a couple of years later we see in coal the court commenting on the AUP in that case, the authorized user agreement that was operative and saying essentially just one of many factors to consider so I think that ultimately how gombok has been applied by the court is through the lens of Justice Deschamps majority judgment for the plurality and I think that what we're going to see go forward is this is just one of the considerations in Spencer look at those contractual provisions that were in place, I mean really it's stunning look at them even in ward and yet they don't drive the privacy analysis at the end of the day and I think that's the court just taking a very common sense approach in this age of technology I mean really seriously show of hands how many people read before they click that I agree I usually forget the I agree and I just I click and then it goes no you forgot to click the I agree okay okay I agree so you know I think but we have one very good that's impressive actually okay you do too but really do you have much of a choice I guess is the other question it's another I think very practical approach by the court because you know what telecommunication provider isn't putting into their contracts these days that they're going to cooperate with the police if the police come knocking or indeed if their service is being used for improper purposes like child pornography that they're not going to go knocking on the police store and there's a very good reason for that the telecommunication provider is facilitating the commission of a criminal offense and indeed it is a crime for them to have on their service child pornography so they have to cooperate in these circumstances whether it's the police initiating that cooperation or them coming back over so you know under the under pipita I think they they technically are out from under the usual pains and constraints of pipita they can cooperate the question is how the police get at it constitutionally and how they get at it constitutionally I think is with prior judicial authorization post Spencer that's the end of it so while it would be lawful under pipita to give it even without a warrant it's not charter compliant for the police to take it essentially that's how I see Spencer shaking out and I think the genesis of that discussion is in Gaumbach general idea yeah I think it's a very interesting question and I wouldn't at all be surprised to see that and I think that actually it could happen and the reason for that is you know again the police thought oh my god you know the sky is falling post view but the reality is we look at stats can from 2010 over 79% of resonances today have a computer that is connected to the internet so if that's the case that is more than what we call reasonable grounds to believe credibility based probability that you're going to come across an electronic device in that location so again it sort of begs those practical issues about I get it like there should be prior judicial authorization and for it's going to happen so for me where is the where is the room for movement in the world of protocols and I think they're coming hi no no you can't so you need reasonable grounds to believe in relation to the specific crime and you have to be looking for evidence related to that crime but we learned in a case called Jones in the Ontario Court of Appeal back a few years ago which has really been applied I think coast to coast since Jones that where the police so in Jones for instance they've got a warrant to seize a computer to search a that relates to an online fraud essentially and it's exactly your scenario they come and they're allowed to look for certain documents relative to that fraud they come across to help pornography and they actually got crowned advice it was back a number of years ago and the crown said well it's the plain view doctrine you're lawfully positioned vis-a-vis that computer you can keep searching you came across it innocently go for it fill your boots definitely the Ontario Court of Appeal said no you can't do that once they came across the child pornography they did it was engaged in a bona fide a search as it related to the fraud that they were investigating so it was fine to come across the actual child pornography but the minute they did they had to freeze that computer go back and get judicial authorization to continue searching it now for this new purpose the child pornography investigation so to answer your question it has to be very focused warrant in the first instance but it doesn't mean that they're precluded from you know investigating what they come across they just have to get further authorization to do it because the plain view doctrine is actually a doctrine that is essentially one informed by the fact of what you've legitimately found when you're looking at it but you can't continue to search for that thing under the doctrine how do you think the the 20 search doctrine is things like that are going to come up against the encryption where people are purposely making documents like any evidence that is being searched for impossible when they're impossible to obtain our password and in most cases cannot be decided even by the best of your reasons so would that be considered an evidence of how there's a real debate about that firstly I have to say working in the area of search and electronic surveillance for a long time with the province of Ontario it was virtually never a circumstance where that happened one of the only pieces of technology that's really really tough is actually blackberry rim technology and it's only in relation to a very small category of that other than that you know what everything is breakable but will it evolve to that point maybe and I think that's going to beg really interesting issues about self-incrimination because if the only way to get behind it is to get the password or you know I've debated in the past what about computers that can only be opened up with the thumbprint can you get a general warrant to take the individual's thumb and place it on and we've done it it's happened but there are real self-incrimination issues embedded in those questions so you just hope that the police if that's the side of the fence that you're on can stay ahead of the technology and if you're on the other side maybe you hope the opposite and sometimes I'm not sure where I am these days in my new world but this question of whether you can get a warrant that covers the computers or the cell phones that happen in the house what do you think Boo says about how much you have to stay in that initial warrant to go into the house about ultimately above the cell phones like or the computers certainly you know there's probably going to be computers and cell phones in the house multiple devices but does Boo require a second warrant once you get those and if not what's required in that first question what do they have to say in the ITO like how much and what's the best practice they have oh my gosh I think that is such a tough question because historically a warrant is directed at a location that's a whole concept of warrants so we are going to search a location but the location is going to sometimes be relative to information so ISP it's for information related to X but in a house situation the location is 123 E Street but the way that the court and I think this really is what you're referring to and I'm of multiple minds on it the court of view has treated the computer like a location and the contents of the computer like information so if 123 E Street is your location what's the computer then it has to be a thing that's being seized from the location but it doesn't fit with our historical conceptualization of how we approach those things so you're getting a warrant to get into 123 E Street and then a warrant to get into the like and then to seize the computer and then another warrant to get into the computer because now your computer becomes your location back at the police station and I think that to answer the question all the best you can do if you want to do it in one warrant and this is kind of really putting on my old hat but I think what you'd have to do is really invent a new form five like warrant under the criminal code so you'd have to say 123 is my location the thing to be seized is the computer and then after in possession of the computer these are the things that are to be looked for in the computer and then if you're getting into protocols and these are the terms and conditions and there is some support in the jurisprudence for warrants that can like even historical type location warrants, 487 warrants for terms and conditions so classic ones are like the media kind of warrants so we see that in cases like New Brunswick we see a discussion in the jurisprudence in all those CBC cases in the early 90's about what are the right terms and conditions when you're searching a media organization to minimize the impact on privilege within the organization and so on so you could term and condition up a regular warrant but I just say I'm yeah I think a second warrant would probably be the easiest way to do it but you'd have to be clear in your ITO that we're getting the computers out we want them on our shopping list on our original warrant and then we'll be seeking further authorization to search once they're out I mean that would be the historical kind of historically consistent approach I guess do you have any other thoughts on that no I think that's my thought I mean I'm crown obviously but that's been my that's been my reading of the one that I just said some resistance from the police on that point but I don't think I guess everything's not crystal clear yet I mean I could see a rationale for yes doing a very detailed explanation of the ITO of what you're going to do with the cell phone when you get it and maybe if it is a more complex investigation maybe there's part six you know what you're going to get when you get into the house so you can speak to those things in a comprehensive way on that first initial warrant on the takedown date so there might be some room to do it in those type of cases but generally I think like on the door kicks you probably want to do the second one yeah well for sure it's the safest way I mean you know we've all certainly my former life a million conversations with police officers saying look like you know what why risk it you might as well yeah we'll work with an abundance of caution here especially the more important the investigation gets so we're not leaving there I'm afraid because of the class coming in shortly so I would ask you to join me and thank you Michele for sharing some great