privacy

Toronto Police Plan to Purchase Full-Body Scanners by 2020

Written on Behalf of Affleck & Barrison LLP

Toronto Police have requested at least one and up to ten full-body scanners to replace strip searches.  According to the public tender documents, Toronto Police Service “is committed to increasing the level of dignity and respect provided during our search process”.

A six-month pilot project using a full-body scanner to scan a subject’s body to reveal concealed weapons or drugs ended last April at one of the busiest divisions of the Toronto Police Service.  This pilot project allowed for the training of officers, outlining procedures and consulting with officers and members of the community. 

The scanners cost at least $250,000 per unit, require approximately $20,000 in maintenance, and there are additional costs associated with training and possible facility renovations as well.

REPORT REGARDING INVASIVE STRIP SEARCHES

A report published earlier this year prepared by the Office of the Independent Police Review Director found that police in Ontario conduct too many unwarranted strip searches. 

The report also determined that police procedures for conducting strip searches were inconsistent across Ontario.  Toronto police officers were found to use strip searches more often than other forces in Ontario.  The report disclosed that strip searches were conducted by Toronto police at a rate of 40 times higher than in similar jurisdictions, such as Ottawa or Hamilton.  Toronto police conduct strip searches in just under 40% of arrests compared to other large police forces (who use strip searches under 1% of the time).

The report indicates that some individuals that are subjected to strip searches may suffer psychological harm. 

Michael Bryant, executive director of the Canadian Civil Liberties Association, stated:

The Toronto Police Service continue having this obsession with searching where the sun don’t shine – without legal authority. 

Mr. Bryant believes that the full-body scanner technology is invasive “instead of being told to disrobe, you’re just being disrobed electronically.”

THE PILOT PROJECT

A recent report filed prior to a Toronto Police board meeting confirms that the full-body scanners that were tested at a downtown police division were a success for both the police and individuals being scanned. 

During the project, 594 strip searches were approved with 311 of the individuals opting to have their search conducted by a full-body scan.  According to the report, 296 of the 311 individuals had been previously strip searched and 95% of them preferred the full-body scan. 

According to the report, 80% of Toronto police officers had a positive judgment of the full-body scanner.

The scanners being tested were similar to the technology used at airports and correctional facilities.  The body scan can find items on or inside a person.  They are able to detect metal, plastic and other items both outside of or hidden inside of the body.  During the project, the body scanners detected a knife, crack pipe, safety pins and heroin wrapped in toilet paper inside someone’s buttocks.

Toronto Police spokesperson Meaghan Gray stated:

The Toronto Police Service believes there is technology available that allows us to modernize our current search processes, increase public trust and accountability, and reduce the intrusiveness of such searches.  These are reasons alone to consider such a project. …  Each circumstance is evaluated on a case-by-case basis and officers must make a determination, based on reasonable grounds, to conduct any level of search.  If a Level 3 search (strip search) is determined to be appropriate, the Full Body Scanner will be used.

During the project, those individuals that were deemed to require a full-body scan could refuse, but were then subjected to a physical strip search.

Due to radiation, pregnant women were excluded from being scanned.  Youth were also excluded from being scanned as a “faint outline of genitalia can be seen” in the saved images. 

Officers conducting and viewing the scans are the same gender as the individuals being scanned.  Those that identify as transgender could either choose a full-body scan or a strip search and could request that the scan or search be conducted by a male, female or both officers.

During the pilot project, the data from the full-body scan was stored for 90 days if nothing was found during the scan.  However, if an item was located during the scan and criminal charges were made, the images would be retained as evidence for court.

The project will continue at Toronto’s 14 division for another three years as it has received funding from the Ministry of the Solicitor General’s Community Safety and Policing Grant. 

Toronto Police have no immediate plans to implement the scanners in other police divisions, but it is recommended that the technology be installed “at each central lock-up facility within the service”.

We will continue to report on any developments regarding full-body scanners in Ontario in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Supreme Court of Canada Finds That Some Texts Are Considered Private

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about the topic of whether there is a reasonable expectation of privacy in text messages. The Supreme Court of Canada (“SCC”) ruled last week that Canadians can expect the text messages that they send to remain private even after they reach their destination (i.e. depending on the circumstances, there may be a reasonable expectation of privacy in text messages even after they have been sent to another person).

In a 5-2 ruling, the SCC in R. v. Marakah set aside the firearms convictions of a man whose incriminating text messages were found on the phone of an alleged accomplice by Toronto police.

WHAT HAPPENED?

An Ontario man, Nour Marakah, sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. The police obtained and executed warrants for both Marakah’s and Winchester’s homes. While conducting the search, the police found Marakah’s Blackberry and Winchester’s iPhone and proceeded to search both devices, which revealed the incriminating text messages. These messages were then used as evidence to charge Marakah.

At trial, Marakah argued that the messages should not be admitted as evidence against him because they were obtained in violation of his rights against unreasonable search or seizure under the Canadian Charter of Rights and Freedoms (“Charter”).

The Ontario application judge found that the warrant for Marakah’s home had been invalid and that the text messages recovered from his own Blackberry could not be used against him. However, the court admitted the text messages from Winchester’s iPhone as evidence. Based on these messages, Marakah was convicted of multiple firearms offences.

The Court ultimately found that while someone who sends a text message has a reasonable expectation of privacy, this expectation ends when the message reaches the intended recipient.

Marakah appealed to the Court of Appeal, where he was unsuccessful. The majority of the Court agreed that Marakah could have no expectation of privacy in the text messages retrieved from Winchester’s iPhone, and therefore could not make a case against their admissibility. Marakah appealed further to the SCC.

SUPREME COURT OF CANADA RULING

The SCC allowed Marakah’s appeal, set aside the convictions and entered acquittals on all charges against him.

The Court found that Marakah had a reasonable expectation of privacy concerning his text messages. Therefore, the texts used as evidence to convict him had violated his guaranteed right to be protected against unreasonable search or seizure under the Charter.

In this case, Marakah was found to be the author of the text messages that he expected to remain private.  He had asked the recipient of the messages, Winchester, on numerous occasions to delete the messages. Marakah’s conviction was thrown out because the search was unreasonable and violated his right under section 8 of the Charter.

Chief Justice Beverly McLachlin, writing for the majority, stated,

I conclude that depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

The SCC did set out a four-step test to determine if and when one can reasonably expect privacy:

  1. What was the subject matter of the alleged search?
  2. Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
  3. Did the claimant have a subjective expectation of privacy in the subject matter?
  4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

The SCC found that Marakah had standing to challenge the search based upon the following:

  1. The subject matter of the search was the electronic conversation between Marakah and Winchester;
  2. Marakah had a direct interest in the subject matter;
  3. Marakah subjectively expected the subject matter to be private;
  4. Marakah’s expectation was objectively reasonable.

The Court concluded that without the incorrectly admitted text message evidence, which was found to be inadmissible, Marakah would have been acquitted.

CAUTION BY THE SUPREME COURT OF CANADA

The SCC did caution that the expectation of privacy is not automatic and depends upon the facts of each case and that the outcome may be different in other circumstances. Chief Justice Beverley McLachlin noted,

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards.

Therefore, we must expect that the law will adapt to changes and developments in technology and communication over time.   As these changes take place in the law, we will continue to provide updates through this blog.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

 

 

Text Messages: Is there a Reasonable Expectation of Privacy?

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal recently ruled that text messages seized from a recipient’s phone can be used against the sender in court.

In R v Marakah, 2016 ONCA 542, Nour Marakah appealed his conviction of multiple firearms offences arguing that the text messages used as evidence against him at trial were not lawfully obtained and should have been excluded by the trial judge.

The Court of Appeal ruled 2-1 against Mr. Marakah, stating that he did not have a “reasonable expectation of privacy” in the messages once they had been sent. Mr. Marakah was successful in bringing a section 8 Charter challenge regarding the evidence seized at his home and from his own cell phone. Section 8 of the Charter of Rights and Freedoms protects all Canadians against unreasonable search and seizure.

However, regarding the messages seized from the cellphone of his co-accused, Andrew Winchester, the Court of Appeal sided with the trial judge in finding that Mr. Marakah did not have standing to challenge the search of Mr. Winchester’s phone. The test for establishing a section 8 Charter right is to for the applicant to establish a reasonable expectation of privacy. The Court of Appeal found that once Mr. Marakah had sent the messages, they were no longer under his control. Although he told Mr. Winchester that he expected the messages to be kept confidential, his subjective expectation of privacy in the text messages was not enough to satisfy the test because his expectation of privacy was not objectively reasonable.

The Court found that Mr. Marakah knew that he had no control over what would happen to the text messages once they reached Mr. Winchester’s phone and he therefore could not have a reasonable expectation of privacy in the messages. Text messages, according to the decision, are more akin to an email or letter than voice communication.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision, click here.