Smart Devices in Criminal Investigations: How Section 8 of the Canadian Charter of Rights and Freedoms Can Better Protect Privacy in the Search of Technology and Seizure of Information

• Author: Lee-Ann Conrod
• Position: Received her JD in 2010 and her LLM in 2018
• Pages: 112-130

APPEAL VOLUME 24

n

115

ARTICLE

SMART DEVICES IN CRIMINAL

INVESTIGATIONS: HOW SECTION 8 OF

THE CANADIAN CHARTER OF RIGHTS AND

FREEDOMS CAN BETTER PROTECT PRIVACY

IN THE SEARCH OF TECHNOLOGY AND

SEIZURE OF INFORMATION

Lee-Ann Conrod *

CITED: (2019) 24 Appeal 115

ABSTRACT

Technology has changed our world, including how crimes are committed a nd how law

enforcement investigate them.Many of our daily activ ities, criminal or otherwise, leave

behind digital d ata. Vast amounts of specic and accurate i nformation is collected through

our intentional uses of technolog y and our inadvertent interact ions with it. is paper

examines how sec tion 8 of theCharteris adapting to new technologies throug h the SCC’s

jurisprudence. e current body of section 8 jurisprudence from the SCC has provided

neither the desired certa inty nor predictability. I point out some specic challenges wit h

section 8 law and propose a new way for ward: a spectrum of protection.

INTRODUCTION

Criminals a nd law enforcement alike rely on ever more sophisticate d technologies in their

respective pursuits . Some criminals employ new technologies to avoid police detect ion in

novel ways, for instance, by u sing cryptocurrencies to hide the proceeds of cr ime. Other

criminals employ tech nology in the commission of their oences, for inst ance, by accessing

child pornography on the internet or mak ing drug and weapons tra cking arrangements

via text messag es on smartphones. In the sa me way technology provides criminals with

means and methods to commit crimes, it can provide speci c and accurate information

about activities that wou ld assist law enforcement in their investigations. Today, more

crimes than e ver are inadvertently leaving behind d igital data in the form of IP addres ses,

search histor y or electronic records of t he criminal activities.

is paper exam ines how technology has be come a valuable and desirable component

of many crimina l investigations and makes proposal s for appropriately regu lating search

and seizure powers. To investigate and prosecute an accused person with the aim of

achieving a convict ion, the police must have gathered the ev idence lawfully s o that it is

* Lee-Ann received her J D in 2010 and her LLM in 2018. She is currently a Crown Prosecutor with

the Public Prosecution Ser vice of Canada in the Atlantic Regional O ce. The views expressed in

this article are those of the au thor alone.

116

n

APPEAL VOLUME 24

admissible at tria l. e Charter1 limits law enforcement’s ability to search tec hnology and

seize information. Sec tion 8 provides that “[e]veryone has the right to be secure a gainst

unreasonable sea rch or seizure.”2

While the text of se ction 8 itself is straightforw ard, the jurisprudence is not. e Supreme

Court of Canad a (“SCC”) has dealt with the intersection of informationa l privacy and

technology on a variet y of occasions over the past t hree decades. Accused persons have

argued before the SCC t hat they have had their right to privacy violated with re spect to

their movements captured by a trac king device,

3

electricit y consumption rec ords obtained

from a util ity company,4 heat patterns i n their home viewed through for ward looking

infrare d technology,5 child pornography les on their home computer6 a nd work laptop,7

and incriminati ng text message conversations.8 e SCC has provided g eneral principles

to assist in the interpretation of section 8, specical ly that it should be governed by a

exible and normative ana lysis.9

e Court has identied t hat the purpose of section 8 is to prevent unjustied state

intrusion on individual privacy.10 ey have created a variety of tools of ana lysis to

achieve this pur pose including the totality of the circu mstances test and the concept of a

biographical core of inform ation. Yet, the jurisprudence from t he SCC has not provided

certainty or pred ictability. Split decisions, caveats, and an ad hoc a pproach create confusion

that leaves justice pa rticipants guessing where the C ourt will fall on developing is sues with

emerging tec hnology.11 Protecting an indiv idual’s technological privac y from the State

in the context of a crimina l investigation is complex. e central focu s of this paper is to

answer the question: in t he context of criminal investigat ions, how can the line be drawn

between lawf ul and unlawf ul searches of tech nology in light of the jurisprudence on

section 8 of the Charter?  roughout this paper, I will show that given the cha llenges with

the current jurisprudence, t he law should be modied to establish greater lega l certainty.

First, I discuss t he current technological context and explore how new tech nological tools

are used to commit cri mes. Second, I outline the development and current state of the law

on section 8 of the Charter and elucidate t he serious deciencies in t he law dealing with

search and seizu re issues in the context of technology. ird, I assess t he eectivene ss of

the framework currently in place for section 8 of the Charter. i s section also explores

contextual fac tors surrounding the interpretation of section 8 with a view to exa mining

the major challenges to ac hieving certaint y within this area of the law. I outline a variet y of

ways in which the SCC ha s added to the uncertaint y. Fourth, and la stly, I recommend a way

forward for the SCC to bet ter address searches of technolog y within section 8 parameters.

I propose a new framework for the an alysis of section 8: a spectr um of protection. at

spectrum would be a ssessed using four criteria: intrusivene ss, specicity and accuracy of

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the

Canada Act 1982 (UK), 1982, c 11 [Charter].

2 Charter, supra note 1, s 8.

3 R v Wise, [1992] 1 SCR 527 [Wise].

4 R v Plant, [1993] 3 SCR 281 [Plant]; R v Gomboc, 2010 SCC 55 [Gomboc].

5 R v Tessling, 2004 SCC 67 [Tessling].

6 R v Morelli, 2010 SCC 8 [Morelli].

7 R v Cole, 2012 SCC 53 [Cole].

8 R v Fearon, 2014 SCC 77 [Fearon]; R v Marakah, 2017 SCC 59 [Marakah]; R v Jones, 2017 SCC 60

[Jones].

9 Canada (Director of Investigation & Research, Combines Investigation Branch) v Southam Inc., [1984]

2 SCR 145 [Hunter v Southam] at paras 16, 18-19, and 26. See also Don Stu art, Charter Justice in

Canadian Criminal Law, 6th ed. (Toronto: Carswell, 2014) [Stuart] at 290.

10 Ibid at paras 25 and 27.

11 See for example Gomboc, su pra note 4; R v M(A), 2008 SCC 19 [M(A)]; R v Kang-Brown, 2008 SCC 18

[Kang-Brown].