Canadian Lawyer

w w w . C a n a D I a n L a w y e r m a g . c o m J a n u a r y 2 0 1 5 13 \ at L a n t I C \ C E n t r a L \ w E s t rEgIonaL wrap-up u sing a casino's surveillance cam- eras to zoom in on a person's text messages is an invasion of privacy, a Supreme Court of British Columbia justice ruled in an oral voir dire ruling after the Crown sought to use text messages as part of the information in an affidavit to obtain an apart- ment search warrant. "It was an interesting case," said Simon Buck, the Vancouver defence lawyer representing accused and applicant Dean Michael Wiwchar in R. v. Ley and Wiwchar. The search war- rant has been obtained but Buck has now been suc- cessful in getting the text messages expunged from the affidavit that was sworn in support of the issuance of a search warrant. Buck said he will now be arguing the sustainability of the affidavit itself in court. The two men — Dean Michael Wiwchar and Philip Juan Ley — were targeted by police after known Vancouver gangster Sandip Duhre was gunned down at Vancouver's Wall Centre in January 2012. Wiwchar, police also allege, was the hit man in a Toronto murder. On March 25, 2012, members of the Vancouver Police Department followed Wiwchar into the Edgewater Casino then went to the video monitoring area and directed a staff member to follow Wiwchar and at times zoom in on the text messages he was sending. The messages were not related to any gaming activity nor did he use his phone at the gaming tables, which is prohibited under the casino rules. Four days later, the police obtained a produc- tion order that required the casino to hand over the video recording from March 25, however, the Crown agreed the video footage was seized before police had the produc- tion order in hand. On March 29, as well, police obtained a general war- rant to use the video cameras at the Edgewater Casino to covertly read the messages being sent and received by Wiwchar. The police did not have any judicial authorization to read the mes- sages prior to that time. Buck took the issue to court claim- ing his client's s. 8 rights had been breached. The Crown argued there is no expectation of privacy in a casino where patrons are openly monitored and are aware of the monitoring. The Crown's position was that once the activity in question was visible and in public, the police were entitled to use cameras and videos to observe it. As well, the Crown argued, anyone star- ing over the applicant's shoulder could observe what the police saw. Buck argued while his client was in a public place, he still had a reasonable expectation of privacy regarding infor- mation on his BlackBerry — inferred by the way he shielded it when he used it and encrypted outgoing messages. The defence also argued that through their actions of zooming in on his mes- sages and videotaping them, the police intercepted private communications without the required authority. Justice Gregory Bowden said it was not unusual for police to use cam- era equipment with zoom lenses for surveillance to capture images of an individual but "This case before me is different." Wiwchar was not arguing against the surveillance inside the casi- no or while playing, but of capturing him using BlackBerry text messages. Bowden, addressing the issue of privacy in a public place, cited R. v. Spencer that when a person leaves home, all his or her privacy rights are not abandoned, despite not being able to control who observes that person. Bowden didn't accept the Crown's position that a person standing close to Wiwchar could see the text messages, and "even if that were possible, in view of the applicant's subjective expecta- tion of privacy, he would have been in a position to protect the privacy of his messages." He also took the police to task on their interception methods. "Rather than seeking a disclosure of the messages sent by the applicant from the service provider, the police chose to read them in the process of being sent with the use of a camera," he reasoned. The judge ruled Wiwchar had a rea- sonable expectation of privacy in rela- tion to the text messages. — Js Court nixes casino's shoulder surfi ng simon Buck

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