A member of the British Columbia Supreme Court rules that 165 incriminating e-mail messages on a cellphone can be used to prosecute three men in a cocaine conspiracy trial. In Ontario, a judge leans in a different direction, rejecting cellphone evidence in a murder case because police lacked a proper search warrant.
From east to west, and from judge to judge, the struggle to make old privacy laws fit modern-day scenarios is growing more intense. It was never easy for judges to delineate the murky line that separates investigative necessity from personal privacy, but in an era of smartphones, computers and instant messaging, the exercise is fraught with uncertainty.
The result is that the Supreme Court of Canada is bracing for a wave of appeals that will effectively rewrite the rules on privacy and electronic evidence. Its challenge will be to draw a clear line between the right to privacy and the need for law-enforcement officials to mine the memories of cellphones, global-positioning devices and an ever-growing list of new gadgets.
“Rules made back when we talked about kings and castles do not work when we are talking about mobile devices and information technology,” says Toronto lawyer Scott Hutchinson, an expert in search and seizure.
Can investigators searching a laptop for signs of fraud change their focus after stumbling upon child pornography? Do computer technicians become agents of the state the moment they come across evidence of crime? Can Internet service providers be recruited by police to filter and reroute text messages?
“The expectation of privacy in a computer is very high,” defence lawyer Alan Gold says. “I would rather burn my computer than let anyone get at it. It has the complete record of my life. It is a life in a box. I think a computer has an even higher expectation of privacy than a home.”
The parade of challenging cases is mounting. For example, prosecutors in a murder trial under way in Kingston, Ont., concluded that the suspects had used Google to locate bodies of water to conceal evidence of the crime. The search commands they allegedly typed included: “Where to commit a murder,” and “Can a prisoner have control over his real estate?”
As for the regional rift in jurisprudence, judges in western Canada have tended to give police considerably more leeway to search electronic devices than their more privacy-oriented colleagues in the east.
“Hopefully, the divergence between the west and the east will be resolved by the Supreme Court,” Alberta prosecutor Steven Johnston told a York University evidence conference recently. “I deal with a lot of files that often cross provincial borders. It causes us no end of consternation trying to figure out which law we are going to go under. Will it be Ontario search law? Will it be B.C. search law, which is markedly different?”
Close to 60 billion text messages were sent in Canada last year – a figure that hints at the stunning trove of intimate information contained in devices like cellphones. Increasingly, the courts are relying on experts to help them weigh the merits of allowing or excluding electronic evidence.
One of those experts – Daniel Embury, head of an RCMP forensic-science unit in Ottawa – works in a small, cluttered lab where he and the five technicians under his command are deluged by a blizzard of devices to be disassembled and analyzed.
Frequently they have to crack into outdated relics, devices that have been saturated with blood, beaten with hammers or run through cellphone “shredders” in sophisticated attempts to obliterate their contents. “Anything that was designed by a person can be reverse-engineered,” Mr. Embury says.
