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A Defence lawyer's perspective on issues in criminal law
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Contact-Tracing: A possible tool for the further Evisceration of Charter Rights
Tagged Criminal Defence BlogApril 14, 2020
THE ATROPHY OF CHARTER RIGHTS
Will the coronavirus pandemic impact the future of our Constitutional protections? I think the answer is likely “yes”.
A hard truth (in my opinion): The Charter protected interests of all Canadians have been consistently eroded following the Supreme Court’s decision in R. v. Feeney in 1997. In the opinion of this Alberta criminal lawyer, the erosion has arguably occurred in virtual lockstep with the reign of Justice Beverley McLachlin as Chief Justice of the Supreme Court of Canada. She was appointed in 2000.
R. v. Feeney,  2 S.C.R. 13 highlights that Courts must sometimes make difficult decisions for the purpose of assiduously protecting Charter values.
Feeney was a murder prosecution revolving around a “savage attack” in a British Columbia community. Acting on information, the police focussed their attention on Michael Feeney – a prime suspect. They attended Mr. Feeney’s home, entered without a search warrant and without permission. Upon entry they woke him from sleep, got him out of bed and observed that he had blood on his clothing. They asked him questions and obtained answers without providing right to counsel. They seized items of interest from his home without a warrant. The police effectively ran roughshod over Feeney’s Charter protected interests.
Not surprisingly, the public was unsympathetic to Mr. Feeney’s Constitutional complaints; for how could the court exclude evidence to the benefit of a murderer?
The trial judge determined that Feeney’s rights were not violated and if they were, the evidence would be admissible in any event under section 24(2) of the Charter. On appeal, Lambert J.A. of the British Columbia Court of Appeal decided similarly.
In a controversial judgment ordering a new trial, the majority of the Supreme Court of Canada boldly reversed the Courts below, concluding that all of the evidence obtained from what they decried as flagrant Charter breaches should be excluded. They did this notwithstanding the public outcry.
McLachlin J. (as she then was) was not on board. In dissent, Justice McLachlin found no breach of Feeney’s Constitutional rights and like the Courts below, would have allowed the evidence in any event. Unlike the majority, she applauded the actions taken by the police.
In the two decades following Feeney, McLachlin C.J. led a Supreme Court that has arguably neutered section 10(b) “right to counsel” (see R. v. Orbanski,  2 S.C.R. 3, R. v. Singh,  S.C.C. 48 and R. v. Sinclair,  S.C.C. 35); undermined “knock and announce”, the traditional default requirement for the execution of a search warrant (R. v. Cornell,  S.C.C. 31); and tipped the balance in favour of permitting courts to interpret overbroad language in judicial interim release hearings (R. v. Hall,  S.C.C. 64). It is noteworthy that McLachlin C.J. would have, if allowed, expanded police powers to search using sniffer-dogs (R. v. Kang-Brown); declined to restrict the ability of police to strip search (R. v. Golden,  3 S.C.R. 679);and broadened the use of general warrants to permit the interception of private communications (R. v. Telus Communications,  2 S.C.R. 3). In a single throwaway line McLachlin nearly castrated a trial court’s ability to exclude unlawfully obtained breath sample evidence in impaired driving cases (R. v. Grant,  S.C.J. No. 32 at paragraphs 110-111).
The point of this truncated walk through 23 years of judicial history is to show that Charter values have undergone considerable entropy since the Feeney highpoint in 1997. It is worth recognizing that prior to McLachlin’s elevation to Chief Justice in 2000, the Supreme Court of Canada stood as an argus of justice, consistently writing to safeguard Constitutional interests. See for example, R. v. Bartle,  3 S.C.R. 173, R. v. Brydges,  1 S.C.R. 190, R. v. Prosper,  3 S.C.R. 236, Hunter et al v. Southam Inc.,  2 S.C.R. 145, R. v. Storrey,  1 S.C.R. 241, R. v. Debot,  2 S.C.R. 1140, R. v. Genest,  1 S.C.R. 59, R. v. Therens,  1 S.C.R. 613, R. v. Stinchcombe,  2 S.C.R. 326, R. v. Collins,  1 S.C.R. 265 and R. v. Stillman,  1 S.C.R. 607.
If the Charter has been atrophying over the last two decades, it’s hard to imagine that its principles will be applied with any more vigor following the coronavirus pandemic.
PANDEMIC A POSSIBLE TOOL FOR MARGINALIZING CHARTER RIGHTS
There is a reasonable probability that March 2020 will mark yet another turning point in Canadian Charter jurisprudence.
Caught in the grips of a worldwide pandemic, Canada struggles to gain the upper hand over a potentially life-threatening disease. Stressed, afraid and isolated, Canadians may now be more prepared than ever to surrender liberty for security.
According to the CBC, technology giants Apple and Google have launched a joint effort to leverage smartphone technology to contain the spread of COVID-19.
With new software, these companies intend on using the Bluetooth capability of mobile devices to track people who may have been infected with the virus. As reported:
The technology works by harnessing short-range Bluetooth signals. Using the Apple-Google technology, contact-tracing apps would gather a record of other phones with which they came into close proximity. Such data can be used to alert others who might have been infected by known carriers of the novel coronavirus….
Software developers have already created such apps in countries including Singapore and China to try to contain the pandemic. In Europe, the Czech Republic says it will release such an app this month. Britain, Germany and Italy are also developing their own tracing tools.
For a limited purpose in the short term, we might applaud the use of this technology. However, the Orwellian application of this potentially intrusive technology is obvious. To that end, contact-tracing could prove to be very valuable data for police, investigative agencies and Governments for use in a plethora of ways not limited merely to halting the spread of coronavirus; this includes everything from non-health related criminal investigations to simply stalking the social patterns of law-abiding people.
Interestingly, the scene currently playing out in the real world is somewhat analogous to the one in The Dark Knight, where Lucius Fox (played by Morgan Freeman) calls the technology to image an entire City “unethical” and “dangerous”.
In the opinion of this Calgary criminal lawyer, we should not trust any assertion that contact-tracing technology will be used responsibly, on a limited basis or that it will be surrendered once COVID-19 has been abated.
What I found interesting is Apple’s response to the World Privacy Forum. Apple asserted that the alerts created by their technology would be handled by public health agencies, not the company itself.
The message that Government is somehow a more trustworthy custodian of personal information is dubious at best. Indeed, I am one of many people (including several Alberta criminal lawyers) who are of the view that Canadians should be highly sceptical about the Government having too much insight into our personal affairs. I also don’t think the police or Government easily surrender their instruments of control or power once they have them.
Please understand, I am not arguing that we should ignore technology as a valuable tool for curbing the coronavirus pandemic. What I am saying, however, is that we should be cautious in trusting how this technology will be employed against us beyond COVID-19. In my opinion, if we can't necessarily trust the courts to shield us from the improper use of invasive technology, it is even more important for us to make our concerns known before its too late.
TECHNOLOGY: THE TOOL FOR INVADING PRIVACY
In R. v. Tessling,  3 S.C.R. 432 (a case decided during the McLachlin reign) the Supreme Court of Canada extended the lawful bounds of a warrantless perimeter search of a private dwelling to include the use of FLIR technology. FLIR allows law enforcement to detect and record thermal imagery emanating from a building. It is noteworthy, that this technology was not originally developed for a law enforcement purpose.
FLIR is but one example of technology coopted for police use.
The police already have access to cell tower data that enables them to use data pings to approximate the location of a cellular telephone at any given point in time. Recently, the police have been using “StingRay” (MDI) technology to simulate a cell tower for the purpose of capturing information. A StingRay is an IMSI-catcher with both passive (digital analyzer) and active (cell-site simulator) capabilities. When operating in active mode, the device mimics a wireless carrier cell tower in order to force all nearby mobile phones and other cellular data devices to connect to it. An MDI captures information from both targets and non-targets in a police investigation.
My point is that the COVID-19 pandemic may very well arm the police with invasive technology to monitor Canadians; to include broad-contact-tracing for use beyond merely surveilling suspected contagion carriers. How this technology is used and how the information is stored should be a concern for all of us.
TALON: A DANGEROUS POLICE TOOL
In Alberta, the now defunct Redford Government created a database called TALON (The Alberta Law Officer’s Network). TALON allows police quick access to information about “persons of interest.” The trouble is, TALON is designed to keep track of not just the criminal records of Albertans, but also, any “speculations, unproven allegations, investigation theories, details of 911 calls — virtually any record of a citizen’s contacts with the police” anywhere in the province. What constitutes “contact with the police” might not just be limited to direct encounters with law enforcement, but perhaps even indirect or even surreptitious encounters, such as those that occur during surveillance. I speculate that TALON might even be used to store some StingRay data, cellular tower ping information, hallway camera images, vehicle tracking device information and yes, could potentially store information captured via contact-tracing.
Though our Prime Minister is certainly capable of using words to convince Canadians that he believes in our democratic traditions, the fact is, he and his Liberal minority government recently attempted an undemocratic coup of Parliament.
If the Trudeau Liberals were prepared to try this kind of dirty trick when all Canadians, including the House of Commons, were vulnerable, how can we trust them not to dirty trick us in the future? Giving any Government the tools to undermine personal privacy is dangerous.
In my opinion, we should be very sceptical about any claims by police or the Government that they will responsibly use the vast information gathering capabilities offered by Apple, Google and/or other big technology companies. Over the years, our Charter Rights have arguably been consistently eviscerated by our high courts, so why should we have any faith that our personal privacy and civil liberty will be properly protected post-COVID?
In the view of this Calgary criminal lawyer, it would be naïve to have any such faith.
David G. Chow
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