Michael Ford (post until Oct. 31/19)
Criminal

One-on-one communications should be private, Presser tells SCC

Toronto criminal lawyer Jill Presser is urging the Supreme Court of Canada (SCC) to prevent police from spying on people’s one-on-one electronic communications without judicial authorization. 

“Canadians have a reasonable expectation of privacy in one-on-one communications,” says Presser,  principal of Presser Barristers.

“Privacy is a precursor to the exercise of many other rights.”

Presser is acting for the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), which is intervening in an internet luring case in which a police officer, without judicial authorization, posed as a 14-year-old girl and traded emails with a 32-year-old man. 

The Court of Appeal of Newfoundland and Labrador rejected the man’s argument that police breached his rights under s. 8 of the Canadian Charter against unreasonable search and seizure. The court held that he did not have any reasonable expectation of privacy in the messages received by the police officer because it was a text-based communication to a stranger, says its ruling.

But CIPPIC, a public interest technology law clinic, believes the expectation of privacy in an electronic conversation does not depend on whether the individuals have met in person, Presser tells AdvocateDaily.com.  

“We’re not talking about posting to a Facebook wall or communicating in a big public chatroom online,” she says.

“We’re talking about email or text messages or WhatsApp, whatever the particular communications platform is. From CIPPIC’s perspective, when you’re in the realm of one-on-one communications, the starting point should be, the default position is: these are private." 

That means that s. 8 is engaged by default, Presser says.

“We go one step further and say if a police officer is going to interpose themselves in the middle of this kind of a communication and interfere in this kind of a communication, especially under an assumed identity, that’s actually an intercept,” she says. 

It follows that police need judicial authorization under Part VI of the Criminal Code, which deals with the invasion of privacy, Presser adds. 

The defendant was convicted in the Provincial Court of Newfoundland and Labrador of communicating by computer with a person he believed to be under the age of 16 for a sexual purpose. Police used a screen-shot program called “Snagit” to capture their communications with the accused, says the decision.

The trial judge, while admitting the evidence, concluded that the man’s Charter right to be secure against unreasonable search and seizure was infringed because police failed to obtain judicial authorization for their online surveillance. In compensation, the judge reduced the accused’s 14-month prison sentence by two months, says the ruling.

The Crown appealed the sentence and the accused cross-appealed his conviction. 

The Newfoundland and Labrador Court of Appeal upheld the Crown’s appeal, but not the defendant’s, ruling that the trial judge erred in holding that police required authorization for the communication, says the decision.

The appeal court said in its ruling that the accused must have known he lost control over any expectation of confidentiality when he sent an electronic communication to a person whom he does not know and whose identity he could not confirm. 

The ruling is problematic, Presser says, in that it employed a risk analysis to determine whether the man’s privacy rights had been infringed. Risk analysis says that there can be no reasonable expectation of privacy where a person knowingly assumes the risk that their interlocutor may record or disseminate their communication, she explains.

The appeal court held that when you’re communicating with a stranger in an electronic medium, especially a text-based digital milieu, you have no basis for trusting them to respect your privacy, Presser says. 

CIPPIC believes there are a number of problems with that analysis, she adds. 

“The most important one is that it flies in the face of Canadians’ ordinary experience with digital and telephone communication,” Presser says. 

“People are going online and having one-to-one communications with people they’ve never met about things that are deeply personal and sometimes things that they wouldn’t want to disclose to their closest friends or family,” she says.

At the SCC, Presser cited the example of online dating apps and websites where users share personal, sometimes intimate, information with people they’ve never met. 

The SCC has repeatedly rejected risk analysis when applied to privacy, she says. 

The court has said time and again that a reasonable expectation of privacy should be normative rather than descriptive, Presser adds. In other words, it should be aspirational, reflecting a thoughtful person’s sense of how the state should guard privacy over the long term, she adds.

The problem with using a risk analysis to determine if privacy has been breached is it results in a self-fulfilling prophecy, Presser says. 

“You end up saying that because the state has the means to do widespread electronic surveillance, people should always expect that it might be surveilling them,” she says.

“You’re in an Orwellian society where there is no space, no zone of privacy where people can be free from the unblinking, ubiquitous gaze of the state.”

CIPPIC says one of the reasons privacy is such an important right is that it’s a precursor to the exercise of many other rights, Presser says.

“So if you want freedom of expression, association, or freedom of religion, you need to make sure that people have privacy and have zones that are free from the peering eyes of the state,” she says. 

The case was heard on May 25 at the Supreme Court, which reserved its decision.

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