All About Information

On December 8th, the Manitoba Court of Appeal affirmed the quashing of two Criminal Code production orders issued against the CBC and CTV.

The orders were for production of audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

In August 2008, Joyal J. of the Manitoba Court of Queen’s Bench considered the sufficiency of the supporting information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. He held that the informant ought to have disclosed:

• that the police had been given prior notice of the press conference but had chosen not to attend;
• the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
• the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

Joyal J. held that these deficiencies, as they related to the media’s privacy interest, led to a flawed exercise of judicial discretion and quashed the production orders as unreasonable.

The Manitoba Court of Appeal held that Joyal J. articulated and applied the proper legal test, did not err in his findings of fact and did not err in finding the police search unreasonable.

Canadian Broadcasting Corporation v. Maintoba (Attorney General), 2009 MBCA 122.

On November 6th, the Nova Scotia Court of Appeal held that the RCMP did not conduct an unreasonable search by reviewing a WestJet passenger manifest without a warrant and without making a formal request.

The context and the background

The issue of law enforcement’s access to personal information held by business organizations has arisen in a number of recent criminal cases, and it is becoming common for courts to judge the reasonableness of a police search in light of standards set by PIPEDA. PIPEDA restricts regulated organizations from disclosing personal information without consent, but includes the following key exemption:

7(3) For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge and consent of the individual only if the disclosure is…

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province…

In this case, the RCMP reviewed a passenger manifest from a domestic flight, identified a passenger who had paid by cash shortly before the flight and who only had one piece of luggage and proceeded to search that passenger’s luggage. It found drugs and laid charges.

Trial judge finds Charter breach

In December of last year, Mr. Justice Simon MacDonald of the Nova Scotia Supreme Court held the RCMP breached PIPEDA because it did not make a “request” required by section 7(3)(c.1) given its “cozy” relationship with WestJet:

It might be a fair comment to say the officers had assumed they had permission to look at the manifest from their daily discussions and associations with the staff at Westjet.  However, in my mind that is not a satisfactory answer to the problem.  There were certain obligations upon the RCMP officers in reviewing the manifest which were legislated under PIPEDA and applied when they went to look at this manifest without a warrant.  Mr. Plimmer said Westjet put a protocol on procedures in place for the police to follow in order to see manifests.  The police were aware of the procedure they had to follow.  I find they didn’t do so in this case, but rather cavalierly walked into Westjet and simply started looking at manifests.

In addition to signaling that the procedural requirements in section 7(3)(c.1) are likely to be read strictly, the trial judgement was notable for its close consideration of WestJet’s privacy policy. The policy said that WestJet might be “required by legal authorities” to disclose personal information without consent, but did not say that WestJet would voluntarily cooperate with law enforcement. MacDonald J. said the policy “seems to emphasize that WestJet would only collect and disclose what is required by law and nothing more.” This weighed in favour of finding the search to be unreasonable and therefore unconstitutional.

MacDonald J. then excluded the evidence based on an application of the Collins test.

Court of Appeal disagrees

The Court of Appeal held that MacDonald J. erred by finding that the RCMP did not have legal authority for the collection of information and by equating a breach of PIPEDA with a breach of the Charter right to be free from unreasonable search and seizure. It then conducted its own contextual expectation of privacy analysis and held that section 8 of the Charter was not engaged in the circumstances. It noted the following in its analysis:

• It could not infer a subjective expectation of privacy given the information used by the RCMP was not particularly private – that is, the defendant purchased a ticket from Vancouver to Halifax at the last minute with cash and checked a single bag all in public view.
• The place searched was a third-party’s office, not a home or not even a business premises.
• Westjet’s privacy policy, with its reference to being “required by authorities” to disclose certain information, was nonetheless a warning to passengers.
• Given the exception to the consent rule in section 7(3)(c.1)(ii), PIPEDA does not support an expectation of privacy.
• The police tactic was limited, in that the RCMP relied on a drug courier profile and sought only information that fit that profile.
• The information collected by the RCMP did not go to the defendant’s “biographical core” of information. The Court said it “amounted to no more than Westjet’s record of Mr. Chehil’s public activities in transacting business with the airline.”
• The fact that the passenger record had a space where more sensitive personal information could be entered (e.g. food preferences) did not support an expectation of privacy. The Court said this fact was too theoretical to count.

Thanks to David Fraser for the tip on this important case.

R. v. Chehil, 2009 NSCA 111.

On October 2nd, Pringle J. of the Ontario Court of Justice held that the police violated section 8 of the Charter by obtaining the identity of an individual suspected of possessing and sharing child pornography by making simple letter request to an ISP. She also admitted the evidence despite the Charter breach, and in doing so made some significant comments about the impact of terms of service on internet user privacy.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

Unlike some other judges who have decided the issue, Justice Pringle held that the nature of the information obtained by a police request to an ISP does go to an individual’s biographical core. She explained that this tactic allows the police obtain the identity of an otherwise anonymous internet user and not simply an ISP subscriber’s name and address:

Once the police accessed Mr. Cuttell’s name and address, they were able to link his identity to a wealth of intensely personal information. Linking his name to the shared folder under his IP address, police learned a great deal about Douglas Cuttell and his lifestyle: namely in this case, his interest in adult pornography, obscenity and child pornography, which were all revealed by his choice of shared files.

Pringle J.’s treatment of the contract is even more significant. Like other judges before her, she held the that a contract between the ISP subscriber and ISP can negate an otherwise reasonable expectation of privacy. In the case before Pringle J., however, the Crown did not prove the specific contract entered into between the defendant and his ISP and therefore failed to negate what Pringle J. called a “premise of confidentiality” regarding one’s ability to engage in anonymous internet use. Her judgement suggests that reliance on ISPs alone does not negate an otherwise reasonable expectation of privacy in anonymous internet use, but the specific terms of service an individual agrees to may change this.

Ultimately, ISP terms of service did have a significant influence on the outcome in this case even though the Crown failed to prove the defendant’s specific contract. Pringle J. decided to admit the impugned evidence despite the proven Charter breach, in part, because ISPs often put customers on notice that they will make disclosures to law enforcement. She said:

I also take into account that while the privacy of subscriber information is important and can provide a critical link to personal information, a subscriber name and address does not have a great deal of intrinsic privacy on its own. As the Crown pointed out, Mr. Cuttell’s name was publicly available on Canada411, and his shared folder was also publicly available to anyone wanting to share child pornography. Many Internet Service Providers appear to contract out of their obligation of confidentiality with subscribers in similar circumstances, and accordingly it would be difficult to argue that there is a high expectation of privacy in this information: see Grant at para. 77.

In conclusion, Pringle J. said that the practice of contracting for disclosure is “unfortunate,” but also suggested that the courts will  often be powerless to grant a Charter remedy in the face of such private action.

Thanks to David Fraser for breaking the news this case. For his related opinion piece on Slaw, click here.

R. v. Cuttell, 2009 ONCJ 471 (CanLII).

This is just to give readers a note of the fascinating computer search decision released by the Ninth Circuit on August 26th.

The decision is called Comprehensive Drug Testing. It is about the execution of search warrants in support of a United States government investigation in to steroid use in professional baseball. The warrants authorized the seizure of records relating to ten players to whom the government had probable cause to believe had tested positive in a drug testing program agreed to by the baseball league and its players association. Though the authorization was for specific records relating to ten players, the government seized a directory that contained records relating to all players who had tested positive in the program, reviewed the entire directory and then served subpoenas demanding production of the broader set of records that it had just seized.

Chief Judge Kozinski questioned whether the government’s asserted need to take the whole directory was bona fide, but in any event held that the government breached the Fourth Amendment by its manner of dealing with the directory. Specifically, he held the government acted unlawfully by not following a protocol that isolated the records it had authorization to seize before conducting a review. He then articulated the following five guidelines for the search and seizure of electronically stored information, necessary because co-mingling and other concerns will often make broad seizure and off-site search a necessity.

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

This is reminiscent of the civil search protocol articulated by the Supreme Court of Canada in Celanese, but I am not aware of a Canadian criminal law equivalent. Anyone?

On August 21st, the Alberta Court of Appeal issued a split judgement in which the majority held that the police violated an accused person’s Charter rights by using a digital recording ammeter to gather information in support of a grow-op investigation.

An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.

Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”) and (2) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes. This statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”

The majority held that the police violated the accused person’s reasonable expectation of privacy. It distinguished the Supreme Court of Canada decisions in both Plant (no expectation of privacy in electrical billing records) and Tessling (no expectation of privacy in heat patterns emanating from a residence) based on the quality of the information. It explained:

The DRA technology at issue in this case is not only different from the FLIR technology considered in Tessling, it is also more intrusive and more revealing. Here, the expert evidence confirmed that a DRA records the flow of electricity to a residence over a period of time. In doing so, it measures the amount of electricity being used at a given point, based on one amp increments. While the DRA does not indicate the source of electrical consumption within the residence, it produces information as to the amount of electricity being used in a home and when it is being used, all over a significant period of time. A pattern of excessive electrical use over a 12-hour or 18-hour cycle indicates to the police that a marihuana grow operation is likely being undertaken at the subject property, as marihuana is typically grown indoors using 12 or 18‑hour light cycles.

Notwithstanding the evidence of the police expert, Sgt. Morrison, DRA information must, as a matter of common sense, also disclose biographical or private information; for example, the approximate number of occupants, when they are present in the home, and when they are awake or asleep. This applies to all homes, regardless as to whether they are being used for marihuana grow operations: Patrick at para. 32. I note that in R. v. Tessling 2003 CanLII 8861 (ON C.A.), (2003), 63 O.R. (3d) 1 at para. 69, 168 O.A.C. 124 (C.A.), Abella J.A., as she then was, observed that many innocent, internal activities in the home, such as taking a bath or using lights at unusual hours, are intensely personal. Likewise in R. v. Plant, 1993 CanLII 70 (S.C.C.), [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203, McLachlin J., as she then was, albeit in dissent, observed (at 302-03) that mere billing records can disclose “important personal information”, including; “…what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of places.”

On the effect of the statutory permission, the majority construed the regulation strictly, and only to permit the disclosure of recorded information about electrical consumption:

In my opinion, the Regulations must be strictly construed, and not interpreted to imply the homeowner’s consent in allowing the utility to gather, at the behest of the state, information that is not useful to his or her relationship with the utility. The Regulations cannot mean that the utility can be used, without judicial authorization, as an investigative arm of the police to gather evidence about what is happening inside the home, unless the consumer has forbidden it. Trespassing on a homeowner’s property is conduct the police themselves are not permitted to engage in (see Kokesch, Evans), and I do not understand that the Regulations were intended, nor constitutionally able, to empower police agents to do what they themselves can not legally do. In my opinion, the Regulations do no more than permit the utility to share pre-existing customer information with the police unless the customer has objected.

O’Brien J.A. issued a very thorough dissent, finding that there was no reasonable expectation of privacy the DRA record disclosed to the police, a finding he noted is the same as reached by the Saskatchewan Court of Appeal in R. v. Cheung. O’Brien J.A. reasoned that Plant and Tessling were not distinguishable and supported a finding that the DRA graph the service provider gave to the police did not reveal any part the accused person’s “biographical core of personal information.” He also reasoned that the Electrical Utilities Act regulation and the related service contract clearly permitted disclosure in the circumstances and therefore weighed heavily against an expectation of privacy.

Note that O’Brien J.A. also made two alternative findings. He held that the search was also reasonable because it was authorized by statute and, in the further alternative, by common law police powers.

R. v. Gomboc, 2009 ABCA 276.

On July 17th, the Supreme Court of Canada issued two search and seizure decisions. In R. v. Harrison, the majority applied a newly-developed test for excluding evidence obtained in breach of the Charter and excluded evidence obtained in a “brazen” and “flagrant” unlawful search of a rental car. In R. v. Shepherd, the Court unanimously held that a brethalyzer demand was made based on reasonable and probable grounds and was therefore lawful.

Real and non-conscriptive evidence excluded in Harrison

The Ontario Court of Appeal’s majority decision in Harrison has been criticized for allowing in evidence that would bring the administration of justice into disrepute. It is about a drug charge that followed a police demand to pull over a rental car on a Northern Ontario highway. The officer had no real reason to stop the car other than he had been told it was rented at the Vancouver airport and it was driving at only the speed limit. After the stop, the officer learned that the driver was driving with a suspended license, arrested the driver and searched the vehicle purportedly incident to that arrest. He turned up a large stash of cocaine.

Though the trial judge found the officer’s in-court testimony to be misleading, he admitted the evidence of the found drugs because he felt the criminality of the officence to be serious. A majority of the Ontario Court of Appeal agreed.

A majority of the Supreme Court of Canada, with Dechamps J. dissenting on his own, held that the evidence ought to be excluded based on the police officer’s blatant disregard for Charter rights and his misleading testimony. The majority applied the new three-part test articulated in the Court’s concurrently-issued decision in R. v. Grant, in which it said a court must assess and balance the affect of admitting evidence on society’s confidence in the justice system having regard to:

1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct)
2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little)
3. society’s interest in the adjudication of the case on its merits

This framework was endorsed by the majority Grant to encourage a more contextualized approach to admissibility and to back away from a rule that conscriptive evidence is generally inadmissible. In Harrison, the found cocaine was neither concriptive evidence nor unreliable in any way. Regardless, the Court held that it should have been excluded, finding that the exclusion of reliable evidence of a serious offence did not outweigh the importance of maintaining Charter standards.

For an early critique of the Grant framework, see here.

R. v. Harrison, 2009 SCC 34.

Trial judge wrong in finding officer had no reasonable grounds for breathalyzer demand

The sole issue in Shepherd was whether a trial judge erred in finding that a police officer had insufficient grounds to demand a breathalyzer. The judge that the officer had a sufficient subjective belief but that his belief was not objectively reasonable, in part because he had relied on the accused person’s initial failure to pull over. The accused person said that he didn’t pull over because he thought the police car was an ambulance. The trial judge felt this excuse was valid, and held that the officer did not have reasonable grounds even though he testified that the accused person looked lethargic, had red eyes and smelled of alcohol.

The Court held that the existence of reasonable grounds is a question of law subject to review on a standard of correctness. It then held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd. The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail.

R. v. Shepherd, 2009 SCC 35.

Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.

In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.

The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:

Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.

R v. Bruce Power, 2009 ONCA 573.

The United States Supreme Court issued its decision in the much-discussed case of Safford Unified School District #1 v. Redding on June 25th. The majority held that a strip search of a 13-year-old Savana Redding violated the Fourth Amendment but that the school officials who conducted the search were immune from liability under the American qualified immunity doctrine.

The search occurred after Redding’s friend told her assistant principal that she received a prescription strength ibuprofen pill and several over the counter painkillers from Redding. The assistant principal called Redding to his office, conducted an interrogation and searched her bag. His interrogation was aimed only at confirming his suspicion that Redding had been involved in providing other students with contraband pills. He did not ask questions to determine whether Redding was carrying pills or where she might be carrying pills, but nonetheless directed the school nurse and an administrative assistant to conduct a strip search. The two women asked Redding to pull her bra out and to the side and shake it and to pull out the elastic on her underpants. They did not find any pills.

Justice Souter wrote for the five judge majority. He applied the relaxed standard for school searches set out in the United States Supreme Court’s 1985 decision in New Jersey v. T.L.O and held that the search was justified at its inception:

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today.

The strip search, however, was not justified. After explaining that strip searches are “categorically distinct” from other less intrusive searches, Souter J. said:

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The search was disproportionate, according to Souter J., because there was no evidence of a serious danger to students and the assistant principal had no reason to suspect that Redding was carrying pills in her bra or underwear.

Justice Stevens and Justice Ginsburg agreed with the majority’s Fourth Amendment finding but disagreed with its finding on qualified immunity.

Justice Thomas dissented on his own. He argued that the majority decision is inconsistent with the letter and spirit of T.L.O., and in particular its call for deference to the professional judgement of educators. He also said that the contextual secondary threshold applied by the majority will be hard for educators to apply.

In Canada, the leading case on school searches is the 1998 Supreme Court of Canada decision in R. v. M. (M.R.), where the Court endorsed a relaxed standard for school searches based on T.L.O. Justice Cory wrote for the majority and said:

The test established in T.L.O. dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances. However it must be observed that this test has been subject to criticism in the United States (see, e.g., J. M. Sanchez, “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381; Thomas C. Fischer, “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409). Nonetheless in my view the test set out in T.L.O. can be applied in the elementary and secondary school setting in Canada. Significantly the same result reached in T.L.O. can be obtained by applying principles to be derived from decisions of this Court which have considered the Charter.

M. (M.R.), affirmed by the Supreme Court of Canada in 2008, dealt with a “pat down” type search of a male student in which a vice-principal found drugs after asking him to turn up a pant leg. The Court found this means of search to be reasonable based on an application of the following principles:

The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected…

The circumstances to be considered should also include the age and gender of the student. For example, a search of the person of a female student by a male teacher may well be inappropriate and unreasonable. Every search should be conducted in as sensitive a manner as possible and take into account the age and sex of the student. It should not be forgotten that the manner in which students are treated in these situations will determine their respect for the rights of others in the future.

This is the same as the proportionality requirement established in T.L.O. and applied in Redding, so Canadian educators may heed the caution offered by Redding. Thomas J. is right that the fully-contextual secondary standard governing the extent of school searches is not precise. The majority opinion in Redding makes clear, however, that strip searches will only be justified in special cases.

Safford Unified School District #1 v. Redding, 557 U.S. ____ (2009).

One June 4th, the Supreme Court of Canada denied an application for leave to appeal the Ontario Court of Appeal’s decision in Royal Bank of Canada v. Ren. This January, Ontario’s top court affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud. My summary of the Ontario Court of Appeal judgement is here.

On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”

R. v. Delaa, 2009 ABCA 179 (CanLII).