Canadian Lawyer

30 O C T O B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m IMSI-catchers and other requests to obtain electronic communications. Unlike Part VI, there is no legislated oversight of these police requests and often law enforcement declines even to admit they use some of the techniques. Civil liberties and privacy groups have been sounding the alarm in recent years. But it is time for Parliament to fulfil its responsibility to the broader public interest in this area in the same way it did when Part VI of the Criminal Code was enacted, says Nader Hasan, a partner at Stockwoods LLP in Toronto, who specializes in criminal and constitutional law. "We have recognized for some time now that new technologies have the potential to eviscerate privacy rights. Gov- ernment has abdicated its important role to police the police. Almost every new protection has been a result of the courts making rules. That is not an effective way to develop broad-based policy," says Hasan. Relying on individuals who have had privacy rights infringed, especially those who were not targets of a criminal investigation, is unrealistic, he adds. Barry Friedman, a professor of con- stitutional law and criminal procedure at the New York University School of Law, suggests the approach of governments in North America to new law enforcement tools is unlike any other area of public policy. "I have terrific respect for police. But they are human, they are not all- knowing," says Friedman, whose recent book, Unwarranted — Policing Without Permission, examines oversight of law enforcement in the United States. "We don't focus on the front end," states Friedman. "There should be rules that are written down and transparent. We have one new technological device after another and the public has no voice in how they are used [by law enforcement]. That makes no sense. The protector of most of this should not have to be the courts." A reliance on courts to rein in state actors if they have gone too far is also com- mon in Canada, but it's perhaps unfair to our judiciary, says David Loukidelis, asso- ciate counsel at Young Anderson barris- ters and solicitors in Vancouver, B.C. "The courts are always having to play catchup." Loukidelis, a former head of the Infor- mation and Privacy Commissioner in B.C. and a former deputy attorney general of the province, says it is an added burden to expect judges to develop an exper- C ourts in Canada and the United States are increasingly required to weigh in on balancing the interests in law enforcement using new technologies and the potential infringement of privacy interests. U.S. jurisprudence has often been cited by Canadian courts in this area in recent years. In two of the more high-profile sets of decisions with virtually identical issues, our Supreme Court signalled a will- ingness to be more deferential to law enforcement than its counterpart in the U.S. thermal imaging R. v. Tessling (2004): Is a warrant required by police using a thermal imaging device to take a "heat" picture of a residence while flying over it with an airplane? The tech- nique was part of a marijuana grow operation investigation, although it was conceded that it could not differentiate whether the imaging was a result of a sauna in a house or a grow-op. A unanimous judgment, issued by Justice Ian Binnie, concluded that a warrant was not required. The imaging "generates information about the house, but section 8 [of the Charter] protects people, not places," wrote Binnie. Kyllo v. U.S. (2001): Justice Antonin Scalia, in a 5-4 decision of the U.S. Supreme Court, concluded that thermal imaging was a search within the fourth amendment. "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant," wrote Scalia. mobile devices and search warrants R. v. Fearon (2014): When police conduct a search incident to arrest, is a warrant required to search a smartphone or similar mobile device? The majority judgment in the 4-3 ruling, written by Justice Thomas Cromwell, found that a warrant is not required as long as the search is truly incidental to arrest and police keep detailed notes. "Cell phones are the 'bread and butter' of the drug trade," wrote Cromwell. "Prompt cell phone searches incidental to arrest may serve important law enforcement objectives." Riley v. California (2014): Chief Justice John Roberts issued the opinion of the U.S. Supreme Court. "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse," wrote Roberts. "The fact that technology now allows an individual to carry such informa- tion in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a war- rant," he wrote. privacy principles: canada and u.s. case law 113,257 number of customers who had information disclosed by rogers in 2016 in response to court orders 33 percentage of customers with information disclosed by rogers that stemmed from "tower dump" orders obtained by law enforcement 44 audio intercept applications in 2015 by law enforcement for cases prosecuted by the federal Crown 0 audio intercept applications by law enforcement on behalf of the federal Crown that were turned down by the courts between 2011 and 2015 sources: public safety canada, rcmp, rogers 2016 transparency report, canlii, citizen lab-university of toronto

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