Cpl. Dean Allchin E Division Criminal Operations Secretariat April 19, 2016

Transcription

1 Cpl. Dean Allchin E Division Criminal Operations Secretariat April 19, 2016

2 If poetry comes not as naturally as the leaves to a tree, it had better not come at all. John Keats in a letter to John Taylor, Feb 27, 1818

3 RCMP Detachments

4 Police in the US

5 London Metropolitan Police

6 STASI

7 Singapore

8 Brunei

9 North Korea

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20 What more sacred, what more strongly guarded by every holy feeling, than a man's own home?

21 The house of him is to every one as his castle and fortress, as well for his defence against injury and violence as his repose. In all cases when the King is party, the sheriff may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors

22 The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

23 The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

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32 There is no place on earth where persons can have a greater expectation of privacy than within their dwelling-house. R v. Silveira 1995

33 Quesnel Falls 1991

34 The police in the present case did not have sufficient grounds either to arrest the appellant, or to obtain a search warrant, yet they forcibly entered the sleeping appellant s one-room dwelling with guns drawn, shook him awake and began questioning him. Such behaviour is antithetical to the privacy interests protected by the Charter and cannot be condoned. John Sopinka, R v. Feeney 1997 It is unrealistic to suggest that the police can never enter private premises without a warrant for the purposes of arrest. The ability of police to capture persons suspected of criminal activity and to preserve evidence necessary to convict them would be severely impeded. Further, hot pursuit is not the only circumstance in which the police are permitted to enter a dwelling house. Other situations will arise in which the threat to society and the danger of having important law enforcement aims frustrated will outweigh concerns about privacy. Clair L Heureux-Dubé, R v. Feeney 1997

35 R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Debot, [1989] 2 S.C.R. 1140, aff g (1986), 30 C.C.C. (3d) 207; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Grunwald, [1991] B.C.J. No. 235 (QL); R. v. Zastowny (1992), 76 C.C.C. (3d) 492; R. v. Breton (1994), 74 O.A.C. 99; Illinois v. Gates, 462 U.S. 213 (1983); People v. Simon, 290 P.2d 531 (1955); Rawlings v. Kentucky, 448 U.S. 98 (1980); R. v. Charlton (1992), 15 B.C.A.C. 272; R. v. Miller, [1988] 1 S.C.R. 230, aff g (1986), 25 C.C.C. (3d) 554; R. v. Jenkins, [1992] O.J. No. 672 (QL); R. v. Bennett, [1996] O.J. No (QL); R. v. Dupuis (1994), 162 A.R. 197; R. v. Anderson (1996), 49 C.R. (4th) 305; Payton v. New York, 445 U.S. 573 (1980); R. v. Macooh, [1993] 2 S.C.R. 802; R. v. Silveira, [1995] 2 S.C.R. 297; Lyons v. The Queen, [1984] 2 S.C.R. 633; United States v. Reid, 69 F.3d 1109 (1995); United States v. Scroger, 98 F.3d 1256 (1996); United States v. Wicks, 995 F.2d 964 (1993), cert. denied, 114 S.Ct. 482 (1993); R. v. Grant, [1993] 3 S.C.R. 223; People v. Johnson, 637 P.2d 676 (1981); People v. Williams, 641 N.E.2d 296 (1994); State v. Storvick, 428 N.W.2d 55 (1988); State v. Gonsalves, 553 A.2d 1073 (1989); People v. Smith, 604 N.E.2d 858 (1992); R. v. Kokesch, [1990] 3 S.C.R. 3; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Cobham, [1994] 3 S.C.R. 360; R. v. Latimer, [1997] 1 S.C.R. 217, aff g (1995), 99 C.C.C. (3d) 481; R. v. Lorincz (1995), 9 M.V.R. (3d) 186; R. v. Louden, [1995] B.C.J. No (QL); R. v. Anderson (1984), 10 C.C.C. (3d) 417; R. v. Sabourin (1984), 13 C.C.C. (3d) 68; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Baig, [1987] 2 S.C.R. 537; R. v. Brydges, [1990] 1 S.C.R. 190.

36 A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. Rosie Abella, quoting California v. Greenwood 1988 in R v. Patrick 2009

37 Objectively speaking, Mr. Patrick abandoned his privacy interest in the information when he placed the garbage bags for collection at the back of his property adjacent to the lot line. He had done everything required of him to commit the bags to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in the public alleyway, including street people, bottle pickers, urban foragers, nosey neighbours and mischievous children, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police. However, until garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition. It could not be said to have been unequivocally abandoned if it is placed on a porch or in a garage or within the immediate vicinity of a dwelling. Abandonment in this case is a function both of location and Mr. Patrick s intention. Ian Binnie, R v. Patrick 2009

38 Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. [but] when one considers the totality of the circumstances, the use of FLIR technology did not intrude on the reasonable sphere of privacy of the accused. Patterns of heat distribution on the external surfaces of a house are not a type of information in which, objectively speaking, the accused had a reasonable expectation of privacy. The heat distribution information offered no insight into his private life and its disclosure scarcely affected his dignity, integrity and autonomy. Ian Binnie, R v. Tessling 2009

39 [In Silverman v. United States 1961] we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Kyllo v. United States 2001

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41 The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. Olmstead v. United States 1928

42 We conclude that the underpinnings of Olmstead have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. Katz v. United States 1967

43 The privacy rationale rests the clergy privilege on each person s interest in the dignity of privacy for his most intimate relationships. A confider who seeks out a member of the clergy for confession and counsel draws on or establishes a soul-baring relationship as deeply intimate as any among family members. There is general repugnance at the law s intrusion into such a relationship. R v. Gruenke 1991

44 1. The communications must originate in a confidence that they will not be disclosed; 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3. the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. John Henry Wigmore, 1904

45 To conclude, the Charter is not meant to protect us against a poor choice of friends. If our "friend" turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does. R v. Duarte, 1990

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47 The appellant's right to control the functions of his own body was breached and for that reason, the confidence in one's ability to candidly exchange information with a medical professional was lost. This cannot be treated lightly, whether or not all was done in good faith, a fact that I do not doubt for a moment. The importance of maintaining confidentiality in the doctorpatient relationship is a longstanding goal which is integrated into the Canadian Medical Association's Code of Ethics. In fact, in our modern informational society, where intimate details of one's life may be available through computerized information accessible to many more persons than those initially entrusted with the knowledge, the security that information will be kept in privacy may be even more significant than one could have historically imagined. R v. Dersch, 1993

48 Although I agree with the respondent that the offence committed by the appellant is of a very serious nature indeed, in my view, the violation of the appellant's rights was of such a serious nature as to tip the balance in favour of the exclusion of the evidence and such exclusion would not bring the administration of justice into disrepute. My conclusion is based on two points. First, the police, having had a lawful means to obtain the required information, should have used such means and, secondly, the exclusion of the impugned evidence does not eliminate all the evidence against the appellant. R v. Dersch, 1993

49 Grounded in man s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. J. La Forest in R v. Dyment, 1988

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