LAW 602 Lecture Notes - Lecture 5: Electric Utility, Telephone Tapping, Digital Evidence
12 Feb 2018
School
Department
Course
Professor
LAW 602: Week 5
Investigation and Evidence Gathering
SEARCHING AND SEIZING EVIDENCE IN CYBERSPACE
• Few issues as important to Canadians as ability of law enforcement officers to invade person’s privacy without
judicial authorization
• Absence of judicial authorization means search presumed to be unlawful; general Code search warrant
provision, s.487(1)
o Allows judicial officer an information to use a search warrant
▪ For anything under the control of the defendant
o You need authorization to search through a computer
• 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 Under section 8 you have the right to privacy
o Often evidence will be non-conscriptive vs. conscriptive
▪ Having to incriminate yourself by being required to provide more evidence to the authorities
(only exists when an individual provides evidence to the authorities)
• Required to do a breath test
▪ Non-conscriptive:
Charter of Rights
• No specific constitutional right to privacy under Charter of Rights and Freedoms’
• Section 8: everyone has right to be secure against unreasonable search and seizure
o If you can show you have a privacy right in relation to what the authorities are searching
• 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
o Do the have a privacy relationship with the object
o The individual has to have a subjective expectation of privacy
o The privacy in the object should then be objectively reasonable
• Challenge for courts is to protect privacy interests of Canadians in face of innovative electronic surveillance
measures
• Technological innovation means amount of personal information that can be recorded, shared with others
virtually limitless
o The expectation of privacy and how we value it should also adapt
o if something is in plain view
• Methods of collecting information: financial, business records, video, camera, texting, wiretapping private
communications
• Greater privacy protections needed in light of new technological developments
• Guarantee against unreasonable search and seizure protects against only “reasonable expectation”
• Reasonable expectation of privacy or not?
o 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?
o 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 or not?
o 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?
o Computer technician arrives at accused’s house, discovers child pornography, tells police of discovery,
police obtain warrant to seize computer. Reasonable expectation of privacy in files on computer?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Charter of rights: no specific constitutional right to privacy under charter of rights and freedoms", section 8: everyone has right to be secure against unreasonable search and seizure. 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. Would it make difference if person signed consent to turn over information of illegal activities to authorities: computer technician arrives at accused"s house, discovers child pornography, tells police of discovery, police obtain warrant to seize computer. Supreme court has ruled police need warrant to look at contents of cell phone: riley, wurie (june, Police become aware of drug deal, track accused without warrant. Reasonable expectation of privacy: u. s. v skinner, u. s. appeals court, 6th circuit (14 aug 2012) law enforcement did not need warrant to track.
