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Supreme Court set to tackle privacy of phone text messages

Jurists also to rule on JP impartiality in search warrants, if heavy fines trigger right to jury trial
By Cristin Schmitz
January 13 2017 issue

Ian R. Smith of Toronto’s Fenton Smith, counsel for the intervener Criminal Lawyers’ Association in an upcoming case before the Supreme Court, says it is ‘critically important’ that a JP or judge be fair, neutral and independent. [Tim Fraser for The Lawyers Weekly]

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Do people have a reasonable expectation of privacy in their text messages stored on recipients’ cellphones? Is there a Charter right to a jury trial for offences with jail terms less than five years accompanied by huge fines?

Those are among the far-reaching criminal law questions the Supreme Court of Canada faces in its winter session from Jan. 11 to March 31.

Of the 28 appeals on the top court’s docket, 16 are non-criminal, raising important points of law in the fields of Aboriginal, commercial, criminal, human rights, immigration, professional negligence and damages (see  related story p. 10).

On the criminal law front, to be heard Jan. 18, is an interesting case from British Columbia which asks: When does the interaction of a justice of the peace or judge with police in respect of an ex parte search warrant application “cross the line” from impartiality into assisting the police: Clark v. The Queen.

Ian R. Smith of Toronto’s Fenton Smith, counsel for the intervener Criminal Lawyers’ Association (CLA), told The Lawyers Weekly it is “critically important” that a JP or judge be fair, neutral and independent because search warrant proceedings happen without public scrutiny or the participation of the police’s target.

“It will be important for us to impress upon the court that it is very important for the analysis of that question to start with the fundamental proposition that the justice’s role is not to facilitate the work of the police, not to make their jobs easy, but instead to protect the rights of the person who…is going to be the target of that search,” Smith explained. “It’s important, from our point of view, that the justice, if he or she finds deficiencies in an application for a warrant, that they not go about offering advice to the police about how to correct those deficiencies, how to improve their materials, or what they can do by way of investigation to have a more compelling application. The justice’s job is simply to say: ‘I’m not going to grant this application.’ It’s permissible for the justice to give a reason for that, but we draw the line at the justice giving advice to the officer about how to go forward.”

The RCMP in the case under appeal asked a judicial justice for a telewarrant at 2 a.m. on the basis that it was “impracticable” (as required by s. 487.1(4)(a) of the Criminal Code) for him to seek the warrant in person. When the JP asked why the officer was bringing the application at 2 a.m., rather than during normal business hours, the officer replied the courthouse was closed, he was off-shift at 4 a.m., and he had to make the arrangements now to get a search done later that day. The JP told the officer to include that explanation in his affidavit in support of the telewarrant request (which was subsequently granted). The trial judge later held the warrant invalid (and excluded the drugs seized under it) on the basis that the JP guided and advised the police. The Court of Appeal disagreed and ordered a new trial.

“There are several issues that could be important,” Paul Riley, counsel for the Public Prosecution Service of Canada (PPSC) told The Lawyers Weekly. “This is the first case that the Supreme Court of Canada has dealt with concerning telewarrants and the concept of ‘impracticability,’ which is the statutory test for resort to a telewarrant.”

On the issue of impartiality, the Crown argues that a justice “is entitled to ask questions, and that does not undermine the impartiality, nor does telling the officer to include the answer in the application,” Riley said. “What we would say the difference is is the JP didn’t say: ‘This is how you should answer the question.’ ”

On the standard for impracticability, Edmonton’s David Lynass, counsel for the intervener Canadian Association of Chiefs of Police, said courts must take into account the multiple demands on police. “The how and when [of telewarrants] should be informed by some of the true, real-world considerations,” Lynass urged. “Some of the competing interests that police are expected to live up to are things like child welfare concerns, mental health complaints, suicide intervention,” and even natural disasters, such as the demands put on the RCMP by the Fort McMurray wildfire earlier last year, he said.

Two companion appeals from Alberta, to be heard Feb. 14, ask whether heavy fines that can range into the millions of dollars under provincial securities legislation across the country —when combined with jail time below five years — trigger a right to trial by jury: Peers v. Alberta Securities Commission and Aitkens v. Alberta Securities Commission.

All but two provincial securities statutes across Canada have offences with penalties of five years’ less a day plus a fine, and there are many other types of criminal, and quasi-criminal/regulatory prosecutions, involving hefty financial penalties that have maximum jail terms of less than five years.

“The ramifications of this are very significant,” remarked the respondent Alberta Security Commission’s (ASC) counsel Don Young.

That is because s. 11(f) of the Charter guarantees a person charged with an offence the right to a jury trial where the maximum punishment for the offence is imprisonment for five years “or a more severe punishment.”

The specific question for the court is whether a summary conviction provincial offence under Alberta’s Securities Act — with a combined maximum sentence of five years less a day, plus a $5 million fine (along with an automatic six-month prison term for failure to pay with no right to a default hearing on whether the accused has the ability to pay) — is “a more severe punishment.”

If the court says yes, as urged by the appellants, the upshot could be a big increase in jury trials, or stays of proceedings in lieu, where jury trials are not available.

According to the ASC, supported by the federal and several provincial attorneys general, the phrase “more severe punishment” means imprisonment or other deprivation of liberty — not fines, however large.

“Quasi-criminal law in Canada will be turned ‘on its head’ if a penalty of less than five years imprisonment plus a fine exceeds the threshold for a jury trial in s. 11(f),” the ASC argues in its factum. “Not only will jury trials have to be made available under the Securities Act, but also for securities legislation in other provinces, and for provincial and federal regulatory statutes in other industries. There is no legal process or infrastructure in place to accommodate such trials, threshold measurement and application would be subjective and incapable of consistency and clarity, and the increased demands for jurors would ‘plug up the system,’ ” the ASC asserts.

Moreover, “in the quasi-criminal securities context alone, all of imprisonment, fines, disgorgement, cease-trade orders, director and officer bans, costs, reprimands, and more, would have to be considered and weighed on the five-year imprisonment scale,” the ASC contends. “How does one predictably and with clarity mix all these sentences and conclude that a right to a jury trial for Securities Act charges exists or not?”

The ASC suggests that to some a $5 million fine by itself might be considered more serious than five years in jail. If the appellants are right, “it would a free-for-all across Canada,” Young opined. “You’d have these subjective assessments in all of these pieces of legislation where there is a combination of punishments that might exceed five years in jail in somebody’s mind.”

On March 23, the court will consider whether accused convicted in separate trials of serious offences had a reasonable expectation of privacy in their text messages seized by police from others’ cell phones: Marakah v. The Queen; Jones v. The Queen.

In Marakah the application judge, and a majority of the Ontario Court of Appeal, held that the sender of a text message has a reasonable expectation of privacy in the message’s content after it has been sent, but that reasonable expectation of privacy ends once the text message reaches its intended destination and is no longer under the sender’s control. That decision conflicts with R. v. Pelucco 2015 BCCA 370.

Nick Devlin, counsel for the PPSC, said the appeal raises “one of the most important issues in the criminal law today. Criminals, just like all citizens, increasingly conduct their affairs through electronic messaging, and law enforcement needs clear guidance on the appropriate way to gather this often crucial evidence.”

He suggested by e-mail that recognizing a reasonable expectation of privacy for sent messaging “results in some very problematic scenarios whereby offenders could end up asserting a privacy interest in their victims’ messaging accounts or devices — including particularly vulnerable victims such as minors being lured by pedophiles.”

Jill Presser of Toronto’s Presser Barristers, counsel for the intervener Canadian Internet Policy and Public Interest Clinic (CIPPIC) argued “there is a high expectation of privacy in communications between individuals, regardless of what medium is used.”

She called Marakah “incredibly important” because the appeal court’s majority ruling “means that once our text messages [or any communications sent through media that create digital records] arrive on the other end, they are vulnerable to search and seizure by the police — and we cannot constitutionally challenge the search, seizure, or use of those communications.”

The issues raised “are essential to our evolving understanding of what is, and is not, private in our digital era,” Presser explained by e-mail. “If only the communications that we can completely control are considered private, as suggested by the majority of the Court of Appeal in Marakah, then Canadians would have a very impoverished private sphere.”

Counsel for the intervener B.C. Civil Liberties Association, Nader Hassan of Toronto’s Stockwoods, noted cell phones contain massive amounts of private communications, including e-mails, SMS text messages and other types of text-based correspondence. “For many of us, these text-based communications have replaced phone calls as the dominant form of phone-based communications,” he said by e-mail. “Just as wiretapping once threatened to eradicate privacy before Parliament enacted Part VI of the Criminal Code, the unchecked power of the state to mine our private text-based communications now threatens to eviscerate privacy in the digital age.”

Susan Chapman of Toronto’s Ursel Phillips, co-counsel with Naomi Greckol-Herlich for the Criminal Lawyers’ Association, said the issue before the court affects all Canadians who rely on smartphones and use apps that harvest and store personal data on remote servers.

“Most Canadians would be concerned to know that private sensitive data stored outside of their physical control may be accessible by the police,” she said by e-mail. “Canadians would be concerned to know that their smartphone may amount to a portable ongoing wiretap on anyone with whom they have contact. This case will not only clarify how our existing legal analysis, which was developed to deal with tangible, physical privacy concern, will apply to informational privacy concerns, but it will also clarify whether Canadians have a right to expect that their digital debris remains private, or whether the use of smartphones and the Internet will result in a consequent reduction in the standard of privacy that Canadians enjoy.”

Click here to see this article in our digital edition (available to subscribers).