Canadian Lawyer

32 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 Kitchener. Tower dumps are better at telling police where people are not," he adds. In addition to what critics say is a lack of oversight related to these new techniques, there also appears to be very little public disclosure about their use. Public Safety Canada is required to issue a report to Parliament each year about requests by law enforcement on behalf of the federal government for traditional intercepts, such as wiretaps. These reports indicate that 44 audio intercepts were applied for in 2015 — about half as much as were requested four years earlier. There is no public data released by any level of government or police service in the country related to the use of tower dumps, IMSI-catchers or any similar techniques that would have obtained private subscriber data from individuals who were not targets of criminal investigation. The Toronto Police Service, for example, releases a detailed report each year on how many times its officers deployed a Taser. When it received a freedom of information request related to the purchase and use of a Stingray (the best-known brand name of an IMSI-catcher), an Ontario Information and Privacy Commissioner adjudicator agreed in 2015 that it did not have to disclose this information because it could impact its effectiveness in using the device — if it had one. In a subsequent freedom of informa- tion request, after it was already revealed by the media, the Toronto police agreed it had used an IMSI-catcher but did not own the device. It argued though that respond- ing to the followup request, which asked for current details about its IMSI-catcher use, might generate too many "hits" and cause computer problems — a reasoning rejected by adjudicator John Higgins this summer. "The inability to search electronic records for a term such as 'stingray' with- out crashing the computer being used to do the search is untenable for an institu- tion under the Act in the era of electronic record-keeping," he wrote in his order for Toronto police to conduct a further search for responsive records. The RCMP, in its organized crime investigation in Montreal called Opera- tion Clemenza, unsuccessfully argued in Quebec Superior Court that it should not have to disclose to the defence the name of the manufacturer of the IMSI-catcher it used. The Crown ultimately issued 36 stays of proceedings earlier this year, stating only that "many factors" went into the decision. IMSI-catcher devices such as the Sting- ray, or a cheaper model known as King- fish, have become controversial in the U.S., where police forces are also reticent about making public information about their use. The devices capture what is known as metadata for any phone in an area where the IMSI-catcher is activated. "Law enforce- ment portrays this information as benign. It is just metadata," notes Hasan. "But it is who I n its decision in Fearon, the Supreme Court stated that a search warrant is not necessar- ily required to search a smartphone incident to arrest. However, while not on a par with a strip search, the court agreed that these searches implicate privacy interests. As well, a search of a phone should not be equated with that of a briefcase or documents in some- one's possession at the time of arrest. What has not been decided yet by any appellate-level court in the country, though, is the privacy interest in one's phone, tablet or laptop when retuning to Canada. A section of the Customs Act, enacted three decades ago, permits a border agent to examine "any goods" brought back into the country. No warrant or evidentiary basis is needed. The federal government and the provinces have argued in lower courts that in the border- crossing context, mobile devices are a "good" and no different than other items in one's posses- sion — a position sharply criticized by privacy advocates. "The border is not a Charter-free zone," says lawyer David Fraser. Without formal rules beyond those of Canada Border Services Agency policies, he suggests, there is potential for abuse. "What if a border agent sees an attractive woman and decides to go through her phone? That would be lawful," notes Fraser. A Charter challenge to the section was before the Ontario Court of Appeal earlier this year in R. v. Saikaley. Ultimately, the court decided the appeal without addressing the constitutional issue. The legal positions of the federal and Ontario governments and intervener groups, however, were all outlined in detailed written submissions. Robert Hubbard, lead counsel for the Ontario Ministry of the Attorney General in Saikaley, wrote that when customs officials search phones they are using a regulatory "tool" in a context where the state interest is at its highest. "The fact that customs might share what it learns with other arms of the state (including law enforcement) upon engaging the tool is a separate issue," Hubbard argued. The senior Crown attorney stated that "different rules" apply at the border to protect the security of the country. "The state is obligated to interfere with the personal privacy of those crossing our nation's boundaries," he wrote. Nader Hasan, who acted for the Ontario Criminal Lawyers' Association, which was an intervener in Saikaley, agrees there is a lesser expectation of privacy at the border. "It does not mean, though, that constitutional rights go down the toilet," he says. For lawyers who travel out of the country, the government assertion that anyone's mobile devices can be searched without a warrant could lead to violations of solicitor-client privilege, he adds. crossing the border: a charter-free zone? 19 1 number of reported court rulings in Canada to date analyzing the use of IMSI-catchers by police and what must be disclosed to the defence (r. v. mirachi) 6 84 audio intercept (wiretaps) applications in 2011 by law enforcement for cases prosecuted by the federal Crown number of investigations in 2016 in which the RCMP says it used what it refers to as mobile device identifiers number of police forces in Canada that have admitted either to owning or having used an IMSI-catcher in an investigation sources: public safety canada, rcmp, rogers 2016 transparency report, canlii, citizen lab-university of toronto

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