Surveillance Technology and Privacy
Below you will find information on the intersection of criminal law and technology. More and more advanced technology is being utilized by police departments that now have the capability to surveil and keep track of citizens. The digital information we accumulate through our daily interactions on smart phones, computers and online platforms have compelled the courts to consider section 8 within the context of the digital age.
How is your right to privacy protected in Canadian law?
Aside from legislation which protects privacy rights, section 8 of the Charter provides constitutional protection from unreasonable search and seizure. In other words, section 8 is the safeguard against unreasonable state incursions into our private lives.
In Hunter v Southam, the Supreme Court of Canada stated that privacy rights are embedded within section 8 of the Charter (Hunter, at page 146). When a possible violation of section 8 is brought before a judge, the judge must ask whether there is a reasonable expectation of privacy within the set of facts in front of him or her (Hunter, at page 159). In Hunter, the minimum standard that the police were required to meet under section 8 was "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter, at page 147).
Over the years, the Supreme Court of Canada has lowered the standard of reasonable and probable grounds in certain circumstances to reasonable suspicion (e.g., sniffer-dogs being used at bus depots and schools, R v Kang-Brown, at paragraph 58).
The Charter was designed to protect individual liberty from unreasonable state interference. However, the post-Charter expansion of common law police powers has taken place alongside the lowering of the minimum standard set out in Hunter v Southam which has narrowed our protections under section 8.
What is a warrantless search?
In some circumstances, police can enter, seize and search property without a warrant, which is usually attained through judicial authorization. These circumstances may include "exigent circumstances" where an officer must enter a person's home to investigate a 911 call (R v Godoy, paragraph 22). They may also include a search incident to arrest where an individual's property is searched in order to retrieve crucial evidence in a criminal matter and there is not enough time to secure judicial authorization prior to the search and seizure (R v Fearon, paragraph 33). Alternatively, police may perform a warrantless search incident to arrest, as long as the search flows from the reasons for the arrest.
Can police search an individual’s cellular phone upon arrest?
The Court in R v Fearon ruled that police may search an individual’s cellphone upon arrest (Fearon, at paragraph 49). In the Charter era, the police power to search incident to arrest was established in Cloutier v Langlois (at page 182). Cloutier tells us that "the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved" (at page 182).
As long as the police are “attempting to achieve some valid purpose connected to the arrest” an individual’s phone may be searched (Fearon, at paragraph 21). In Fearon, the Court did not address why the police were not required to seek a warrant from a judge before they could search the cellphone for evidence related to the charge.
Although the Supreme Court of Canada considers the search of a cell phone to be a serious intrusion into an individual’s right to privacy, if a police officer suspects that the cell phone may contain evidence in relation to the arrest, they have a common law power to search the phone without judicial authorization (Fearon, at paragraph 45).
Can the police search an individual's personal computer without a warrant?
Before answering this question, two important aspects of section 8 case law relating to personal computers must be discussed. Firstly, the Supreme Court of Canada has provided guidance to lower courts on the topic of search and seizure of personal computers. The Supreme Court has commented that an individual's privacy interests in the contents of a personal computer are similar to the privacy interests found in one's home (R v Morelli, at paragraph 103). Courts recognize that personal computers could be used to store vulnerable information relating to medical, banking or other private information (R v Machulec, paragraph 101).
Secondly, there is a key distinction in the case law between seizure of a personal computer by the police and the search of the information on that computer. R v Vu states that police may seize a personal computer during a lawful search of a property but may not search the device without judicial authorization (Vu, at paragraph 49). Courts have ruled that our "material privacy interest with respect to a computer is not in the physical tower. It rests in the information stored in the computer" (R v Butters, at paragraph 35).
The Case law suggests that police officers have wider discretionary power to seize a personal computer but will likely need to seek judicial authorization to search the contents of the computer. In some circumstances, police may need to seize data to protect evidence of a crime and may do so without a warrant. According to R v Machulec, the Ontario Court of Appeal reviewed the ancillary police powers case law to determine that police may seize an object if they have reasonable grounds to believe the object has been used in the commission of a crime, as long as the police are on the premises lawfully (at paragraph 113). In order to determine whether this standard has been met, courts will look at the "totality of the circumstances" to determine that the police officer subjectively believed that the item was used in a crime and that this belief was objectively reasonable (at paragraph 113). If these two components are established, the seizure will likely be valid under section 8.
A study out of the University of Toronto highlights the use of algorithmic policing in Canada. The study reports on the use of this technology in order to predict and prevent crime. This technique involves the amalgamation of different sources of data which are fed into an algorithmic process.
The study emphasises the importance of the accuracy of information fed into the algorithm. If the data entered into the algorithm is inconsistent or inaccurate, the results attained by the algorithm will be inaccurate.
Many police forces in major cities have either adopted algorithmic policing or are in the process of testing out programs that they may implement in the future. These either seek to prevent crime by identifying potential hot zones, or use the program to single out individuals that are at a heightened risk to commit a crime.
Although courts have not yet commented on this nascent technology, it is likely that Algorithmic Policing will engage section 8 rights when considering how police collect and use the information that is compiled into the database.
Section 8 "protects people not places."
-Hunter v Southam
R v Tesslling is a 2004 case that focuses on the lawfulness of using a camera "utilizing Forward Looking Infra-Red" (FLIR) technology on a dwelling house (Tessling, at paragraph 2). The Court was tasked with determining whether the RCMP's use of this technology which led to the discovery of a marihuana grow up on the accused's property was a violation of his section 8 right to privacy (at paragraph 3). The Supreme Court had the opinion that the use of the FLIR technology was "an external search for information about the home", (at paragraph at paragraph 27), as opposed to the Ontario Court of Appeal majority who felt it was an internal search of the home and "'thus worthy of the state's highest respect'" (at paragraph 27). The Supreme Court sided with the Crown's argument that heat rises from the house like "smoke from a chimney" and there should be no "reasonable expectation of privacy" regarding information emanating from the property (at paragraph 39). The Court found that the FLIR technology cannot "identify the source of the heat or the nature of the activity that created it" (at paragraph 53). In other words, the Court held that FLIR technology is useless information in a vacuum (at paragraph 62). Because the RCMP had been provided with information from two informants about the grow op on the property (prior to the use of the tech), that info was used in tandem with the FLIR tech to justify getting judicial authorization to enter the premises.
If an accused can prove, on a balance of probabilities, that the police conducted a warrantless search, the onus moves to the Crown who will need to prove, on a balance of probabilities, that it was
authorized by law
the law itself is reasonable; and
the manner in which the search is carried out is reasonable.
(R v Crocker, 2009 BCCA 388 at paragraph 58).
Police Search Powers
Click on the images below to learn more about privacy rights in Canadian law:
Jochelson, Richard and David Ireland, Privacy in Peril, UBC Press, 2019.