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w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 8 43 her consent, Gravelle also reported the family computer had child porn on it. Without a warrant, the Greater Sud- bury Police were allowed by Gravelle into the house and off with the comput- er, which they held for more than four months, without a warrant and without searching it. After obtaining a warrant and searching the computer, they did not file a report to a justice as is required by s. 489.1(1) of the Criminal Code. They got another warrant to re-seize and search and found the child pornography. Reeves was charged with possessing and accessing child pornography, but he made a successful pre-trial Charter application under s. 8, which the Crown then appealed. The application judge said that in the original warrantless search and seizure, there were no exigent circumstances to justify it, that in holding the computer for four months without reporting to a justice, the police were in violation of ss. 489.1 and 490 of the Criminal Code and finally that the information to obtain used to, later, secure a warrant was insufficient. Commentators say this case is an opportunity for the court to offer clari- fication on the impact of joint residence on the law of search and seizure and one's reasonable expectation of privacy. Before his death, Edward Greenspan, who founded Greenspan Partners LLP, had been representing a group of alleged Mafia members from Quebec in a case that blew the lid off an RCMP inves- tigative technique and had significant implications for the law of security and privacy. The case was taken over by Frank Addario of Addario Law Group LLP after Greenspan's death. Megan Savard, a partner at Addario Law Group LLP, says "scrutinizing and challenging police investigative tech- niques" is a prominent area of the law for her firm. In Operation Clemenza, the RCMP were using a device called a stingray to capture their correspondences. The stingray, or IMSI-catcher, pretends to be a cellphone tower and attracts the signals of cellphones in the area. The RCMP's stingray snooping led to the arrests of nearly 50 alleged Mafia associates, some of whom were Addario's clients. Through the technology, the RCMP obtained the IMSI numbers of their BlackBerrys. The RCMP then took those numbers to BlackBerry and was given the data on correspondences between the IMSI numbers identified as those of the suspects. "When I got involved, we had two questions: Were they fully disclosing all the details to the judge and were they fully disclosing the fails to the judge?" Addario says. He says the suspects in question never kept their phones for more than a week before they would throw them away and get new phones. When they had the new ones, they'd use nicknames and switch the phones among them. He says the RCMP had to guess who had the phone and when. Addario asked for the data on the communications to be disclosed. "That's when the fight happened because they were going to have to give us the information about the technology and it had never been before disclosed in Can- ada," he says. "The judge ordered them to make a disclosure because we demonstrat- ed the existence of potential false positives that could mislead the jury." When the RCMP balked, stays of pro- ceedings were dealt to Addario's clients and dozens of other defendants whose cases came from Clemenza and the sting- ray surveillance. "It turned out there were 40 or 50 other cases for individuals also in Que- bec [that] were riding on the same dis- closure order and, rather than make the disclosure, the Crown chose to fold its tents so that the police could keep the technology alive," says Addario. Addario, who is also a vice president of the Canadian Civil Liberties Associ- ation, says that the use of new snooping technology needs to withstand scrutiny from the trial process. It could be the technology is sound and reliable, but it could have flaws. "As with all new technologies, they need to be tested in the crucible of inter partes trial. And you can't do that if one party is claiming national security or investigative privilege over the advice or the information," he says. Addario's challenge led to the first dis- closure by the RCMP that they were using these stingray/IMSI-catchers. They later released documents that showed their use could eliminate calls made by other cell- phones, including calls made to 911, and their use has subsequently been reformed. While Addario jousts with the police over surveillance techniques, Alain Hep- ner's Calgary firm, Alain Hepner Law, was retained by the Calgary Police Service to defend its members. Hepner has also been retained by former Alberta judge Robin Camp as he attempts to get back as a prac- tising member of the law society. Hepner represented Gladys Heavenfire, who on the heels of the Supreme Court's Lavallee decision, successfully used the "battered woman" defence to get his client an acquittal for shooting her abusive part- ner and killing him. "I was one of the first ones in Alberta to have a jury acquit her of second degree murder for shooting her husband after she was being abused," Hepner says. With the effects of the Jordan deci- sion on trial delays and new Liberal government justice reforms with the stated intention of expediting the judicial process, the criminal bar will likely con- tinue to see major changes to how they operate. Stay tuned. "Beginning on day one, people here start doing trials. . . . So, they learn how to cross-examine and how to address judges from the beginning and I think it is unique for a firm of our size managing complex cases to have lawyers who can switch comfortably back and forth between preparing complex cases and litigating trials." FRANK ADDARIO, Addario Law Group

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