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05.28.2008 , Toronto - Dog master Edward Filman Walks around bags with his detector dog, Lana, who has found a suitcase with restricted products. Lela is practicing in a controlled environment, but is usually put to work at the baggage carousel. ASHLEY HUTCHESON FOR THE GLOBE AND MAIL. (Ashley Hutcheson For The Globe and Mail)
05.28.2008 , Toronto - Dog master Edward Filman Walks around bags with his detector dog, Lana, who has found a suitcase with restricted products. Lela is practicing in a controlled environment, but is usually put to work at the baggage carousel. ASHLEY HUTCHESON FOR THE GLOBE AND MAIL. (Ashley Hutcheson For The Globe and Mail)

Globe editorial

Surveillance, sniffer dogs and reasonable suspicion Add to ...

What is the difference between suspecting and believing? And do the “lawful access” sections of the Protecting Canadians from Online Crime Act, known as Bill C-13, strike the right balance between those two states of mind, in the ways it would grant electronic search-warrant-like powers to the police and other public investigators?

The other similarly important question about Bill C-13 is whether the authorities will actually use it. A lawful access bill has been long awaited and long discussed and is most desirable – but it could turn into window-dressing. Much too often, the police simply ask telecommunications companies for data under their control, and the wireless carriers are often politely compliant. The requirement of judicial authorization must be consistently taken seriously.

At present, a document called the Solicitor-General’s Enforcement Standards, built into the carriers’ licences but unknown to the general public until last September, leans on the companies to facilitate what the police want, creating something like a presumption of compliance. The SGES – in effect an unpublished regulation – should be explicitly subordinated to Bill C-13, if and when it is enacted, and strictly confined to matters of technological compatibility.

The House of Commons justice and human rights committee is currently studying Bill C-13 (which also deals with cyberbullying and the electronic distribution of intimate images). The most significant criticism of the bill has to do with the various types of judicial authorization of electronic surveillance – and the different criteria by which judges will decide whether to issue the 21st-century equivalents of search warrants.

For some searches, a reasonable ground to believe that a crime has been, or will be, committed is enough. For other searches, a reasonable ground to suspect – a somewhat laxer standard – is enough.

Above all, this issue turns on what the bill calls “transmission data,” but is more commonly known as “metadata.” By analogy, the address on a letter envelope (and the return address, too, for that matter) are metadata; the actual content is simply data.

In the past, it did not seem terribly intrusive to look at the outside of an envelope. In legal language, addresses did not raise much of “a reasonable expectation of privacy.” Opening the envelope and reading the contents are undoubtedly intrusive acts. It is the same thing as eavesdropping.

In present times, an ability to know with whom someone communicates can have considerable information value. But knowing who someone’s friends are is surely not nearly as much of an invasion of privacy as overhearing a conversation held behind closed doors. Bill C-13’s permitting of warranted access to metadata, based on reasonable suspicion of crime, is not outrageous.

“Reasonable suspicion” is not in itself deeply suspect. It emerged in the United States of the 1960s, at a time of high crime, but also in the time of a distinctly liberal Supreme Court. From there, it has made its way into Britain and, in specific contexts, Canada.

The notion emerged from a case in which a policeman saw two men on a street in Cleveland, scoping out a store window, peering into it in a repetitive, systematic way. They were plainly up to no good. The officer briefly stopped and frisked one of them, who turned out to have a concealed weapon. So there was a crime, though the apparently intended crime of burglary never took place.

In due course, the U.S. Supreme Court said that such a search can be justified if it is based on “articulable facts” – not just a hunch or an intuition.

In Canada, reasonable suspicion is a criterion for a “roadside screening,” a preliminary to a breathalyzer test. And there is now a considerable series of cases about reasonable suspicion and sniffer dogs. Most judges have thought that a dog sniffing an overnight bag for illegal drugs, in a public place such as a bus terminal, is not very intrusive. As a result, there is now in Canada a common-law police power to search with sniffer dogs.

In less tangible, more electronic contexts, it’s not obvious to say what kinds of “articulable facts” might justify a search of someone’s metadata, but that’s the kind of question judges have to deal with.

Craig Forcese, a law professor at the University of Ottawa, a moderate, balanced observer, is right that this bill is much better than its predecessors, which included some simply warrantless access.

The Commons committee, and later both houses of Parliament, should keep looking at the bill for possible improvements, and for serious flaws, but an imperfect framework is much better than a free-for-all. That means, of course, that a free-for-all, in which some corporations and other entities just find it expedient to voluntarily accede to ostensibly voluntary requests from the powers-that-be, must simply end.

The rule of law should henceforth prevail even – or rather, especially – in cyberspace.

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