CRM 200 Lecture Notes - Lecture 5: Telephone Tapping, Numbered Company, Canada Revenue Agency
3 May 2018
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Department
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LECTURE 5 - Investigation and Evidence Gathering
Searching and Seizing Evidence in Cyberspace
• Fe issues as ipotat to Caadias as ailit of la efoeet offies to iade peso’s pia
without judicial authorization
• Absence of judicial authorization means search presumed to be unlawful; general Code search warrant
provision, s.487(1)
• However, competing expectations and demands: concern over personal safety and security, need for
investigative tools for emerging technologies vs legitimate interest in protecting privacy, especially over
personal information
o Search and seizure would not be okay unless there is judicial authorization
o Apply for a search warrant essentially
o Law gives police to seize but search is a nono
Charter of Rights
No speifi ostitutioal ight to pia ude Chate of Rights ad Feedos’
Section 8:
• : everyone has right to be secure against unreasonable search and seizure
• Charter right protects against government intrusion into private sphere of individual
• Privacy interests higher in homes, body than cars, factories – reasonable expectation of privacy has both
subjective component and must be objectively reasonable
• Challenge for courts is to protect privacy interests of Canadians in face of innovative electronic
surveillance measures
o Seizure – what the police actually takes for evidence
o Courts have to determine what is reasonable and unreasonable
Methods of collecting
information
• financial, business records, video, camera, texting, wiretapping private communications
o Technological innovation means amount of personal information that can be recorded, shared
with others virtually limitless
o Greater privacy protections needed in light of new technological developments
o Guarantee against unreasonable search and seizue potets agaist ol easoale
epetatio
Reasonable expectation of
privacy or not?
• Person rents hotel room, invites persons to come and gamble, undercover police officer attends, video
surveillance used, Criminal Code has no video surveillance provision. Reasonable expectation of privacy in
hotel room?
find more resources at oneclass.com
find more resources at oneclass.com
• Police use airplane to fly over house, suspect it contains marijuana grow operation; plane detects heat
patterns escaping from house, leads to police obtaining search warrant as result. Reasonable expectation
of privacy in heat emissions from house?
Reasonable expectation of privacy
• Person themselves needs to have a reasonable expectation of privacy themselves and even if they did is
it objectively reasonable
Court would say
• not if the individual has the privacy to the undercover cop but the court would say, if you talk to another
person, would you expect the conversation be private.
Content Neutrality Approach
• If ou lose the doo i ou hotel oo, ould ou epet that it’ll e piate.
• Reasonable expectation of privacy not in the event, but approaching the issue in general , if you go to
hotel and close door, would a reasonable person expect a private area
Person needs to have a subjective reasonable expectation of privacy and must be objectively reasonable
Authorities suspected that house was growing weed, flew a plane and was only able to show heat patterns
coming off the house | Off the wall technology not through the wall technology|
– Did the defendant have a reasonable expectation of privacy?
– Would the person have a subjective expectation of privacy of heat coming from your home?
Reasonable expectation of
privacy or not?
• Electric utility company installs digital recorder to measure flow of electricity, turned over to police who
suspect marijuana grow operation, leads to search of residence with warrant, Reasonable expectation of
privacy in utility information? Would it make difference if person signed consent to turn over information of
illegal activities to authorities?
• Copute tehiia aies at aused’s house, disoes hild poogaph, tells polie of disoe, polie
obtain warrant to seize computer. Reasonable expectation of privacy in files on computer?
• What about a cell phone containing incriminating evidence? Would it make a difference if it was not
password protected? What if cell phone rings in front of investigator?
Renting of hotel room:
• question is not whether persons who engage in illegal activity behind locked door of hotel have reasonable
expectation in privacy, but rather in broad and neutral terms ask whether in our society persons who retire
to hotel room, close door have reasonable expectation of privacy: Wong, SCC (1990)
Airplane flying over home to
detect heat emissions:
• external patterns of heat distribution on external surfaces of house not information in which person has
reasonable expectation of privacy – heat distribution offers nothing of biographical core of personal
information:
• Tessling, SCC (2004)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Searching and seizing evidence in cyberspace without judicial authorization: fe(cid:449) issues as i(cid:373)po(cid:396)ta(cid:374)t to ca(cid:374)adia(cid:374)s as a(cid:271)ilit(cid:455) of la(cid:449) e(cid:374)fo(cid:396)(cid:272)e(cid:373)e(cid:374)t offi(cid:272)e(cid:396)s to i(cid:374)(cid:448)ade pe(cid:396)so(cid:374)"s p(cid:396)i(cid:448)a(cid:272)(cid:455) No spe(cid:272)ifi(cid:272) (cid:272)o(cid:374)stitutio(cid:374)al (cid:396)ight to p(cid:396)i(cid:448)a(cid:272)(cid:455) u(cid:374)de(cid:396) cha(cid:396)te(cid:396) of rights a(cid:374)d f(cid:396)eedo(cid:373)s". Methods of collecting information financial, business records, video, camera, texting, wiretapping private communications: technological innovation means amount of personal information that can be recorded, shared with others virtually limitless. Reasonable expectation of privacy in hotel room: police use airplane to fly over house, suspect it contains marijuana grow operation; plane detects heat patterns escaping from house, leads to police obtaining search warrant as result. Reasonable expectation of privacy: person themselves needs to have a reasonable expectation of privacy themselves and even if they did is it objectively reasonable. Court would say: not if the individual has the privacy to the undercover cop but the court would say, if you talk to another person, would you expect the conversation be private.
