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The Canada Border Services Agency is an enforcement agency that keeps contraband out of Canada. This video mentions investigative techniques officers use to identify any suspicious package or person and how they go about legally screening and searching them. Some other things being searched  along with drugs are plants, food items, insects and meat. This is for the benefit of disease prevention, preventing increased supply of drugs or weapons in underground drug circles/ street, and for overall safety for individuals in Canada.

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OTTAWA - The Trudeau government has hired a former top public servant to study options for more robust oversight of Canada's border agency - the latest sign the agency could soon have new people looking over its shoulder.

Former Privy Council clerk Mel Cappe expects to complete his report by the end of the month on whether enhanced review of the Canada Border Services Agency is needed and, if so, how that could best be accomplished.

Civil libertarians, refugee lawyers and committees of both the House of Commons and Senate have called in recent years for stronger independent monitoring of the border agency.

The office of Public Safety Minister Ralph Goodale said in March of last year the government "is examining how best to provide the Canada Border Services Agency with appropriate review mechanisms."
READ MORE: Canadian border guards seized 415 fraudulent passports, visas in 2016
The Liberal government has taken a step in that direction by introducing legislation to create a committee of parliamentarians to oversee agencies with security and intelligence responsibilities, including the border agency.

However, the government has signalled that some kind of specially designed means of reviewing the border agency is also in the works.

Cappe, Privy Council clerk for three years during Jean Chretien's tenure as prime minister, is looking at existing review and oversight of the agency, including any gaps, as well as potential models for more comprehensive monitoring.

He is keeping an open mind and is reluctant to say much at this point.
VIDEO: Behind the scenes with CBSA
"Public confidence in the integrity of the protection of Canadians is important - and that's what we're working towards," said Cappe, a professor in the School of Public Policy and Governance at the University of Toronto.

The border agency's 13,000 employees manage the flow of about 100 million travellers - as well as some 16 million commercial shipments - entering Canada annually. They collect, analyze and distribute information concerning people and goods at border points, air terminals and seaports.
READ MORE: Canadian border officials can search your cellphone, confiscate your device
Border officers can stop travellers for questioning, take blood and breath samples and search, detain and arrest citizens and non-citizens without a warrant. The border agency's role in immigration detention has come under intense scrutiny following in-custody deaths.

The agency's internal recourse directorate handles complaints from the public, and other bodies including the courts, the federal privacy commissioner and the Canadian International Trade Tribunal examine various concerns about the agency's work.

VIDEO: Goodale says RCMP, CBSA 'keeping a very active watch' on refugees crossing border

But unlike the RCMP and the Canadian Security Intelligence Service, the border agency is not overseen by a dedicated review or complaints body.

The lack of independent review of border officer conduct "is a gap that definitely needs to be addressed," Goodale said last year to a Senate committee studying a bill, sponsored by now-retired senator Wilfred Moore, that would create an inspector general for the border agency.
READ MORE: Lack of resources makes border 'vulnerable' as refugees pour in: CBSA union
Goodale said that while he agreed with the spirit behind the bill, he could not support it due to uncertainties about its scope and how the new inspector general would work with existing review bodies.

The minister also said he did not want to pre-empt overall federal consultations on the national security framework.

Goodale's department is sifting through the results those consultations with the aim of introducing a first wave of legislative proposals as early as next month.

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Independent monitoring in store for Canada Border Services Agency

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OTTAWA - The Trudeau government has hired a former top public servant to study options for more robust oversight of Canada's border agency - the latest sign the agency could soon have new people looking over its shoulder.

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Video 2: Search and Seizure Crash Course

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Video 2: Search and Seizure Crash Course

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Though this video is about search and seizures in the American Amendment, it provides an overview of when police are allowed to conduct searches and seizures, and the specifics of what a warrant allows similar to the Canadian Charter. The video also explains what a reasonable search is, what is a probable cause ,  and what these mean in terms of your home or car.

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Search and Seizure: Crash Course Government and Politics #27

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Video 3: Can law enforcement legally access data on your smartphone in Canada?

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Video 3: Can law enforcement legally access data on your smartphone in Canada?

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This video is about the public disapproval of Apple having its users phone information available to the government. This comes after Apple helped the FBI unlock the phone of a terror suspect. This relates to users right to being secure against unreasonable search and seizure.

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The debate over whether Apple should comply with a U.S. court order asking it to hack an iPhone belonging to one of the San Bernardino shooters has grown tense over the last week as tech executives, privacy experts and legal pundits weigh in.

The case has stirred up much debate - thanks to Apple's concerns of creating a so-called backdoor into the iPhone - but it also has many people asking questions about what happens to smartphone data in criminal investigations.
READ MORE: Apple's encryption a 'gift from god' for criminals, NYC police say
Which got us thinking - can law enforcement agencies legally access data on your smartphone here in Canada? If so, what legal requirements have to be met?

"With respect to the case involving Apple, although raised in the U.S., this is an issue of universal importance. One principle to keep in mind is that companies need to be governed by the rule of law," said Tobi Cohen, a spokesperson from the Office of the Privacy Commissioner of Canada.

"That being said, the issue of whether it is possible for tech companies ‎to comply with warrants without affecting the safeguards that protect all of us is something that must also be taken into account."

When it comes to the legalities of this question in Canada, there are two important court rulings we must look at.

In June 2014, the Supreme Court of Canada ruled that police need a search warrant to get information from Internet service providers (ISPs) about their subscribers' identities when they are under investigation.

"In that case the Court examined the issue of whether Canadians have a reasonable expectation of privacy vis-à-vis the state in subscriber information held by their Internet service provider," said Cohen via email.

"The Court set out excellent guidelines. When it comes to the sharing of information by companies with law enforcement, the principle of warrants is key."

According to the ruling, a warrant is needed in all but a few very specific circumstances.

1. If there are exigent circumstances, such as where the information is required to prevent imminent bodily harm.

2. If there is a reasonable law authorizing access.

3. If the information being sought does not raise a reasonable expectation of privacy.

"The sharing of information should, as a rule, be authorized by the court on the principle that the courts are best placed to balance the interest of the police in getting the information and the interests of individuals in having their privacy protected," Cohen added.

In a separate ruling, in December 2014, the Supreme Court of Canada said that police can conduct a limited search of a suspect's cellphone without getting a search warrant, but they must follow strict rules.
READ MORE: What rules must police follow to search a cellphone during arrest?
The court said in a precedent-setting ruling that the search must be directly related to the circumstances of a person's arrest and the police must keep detailed records of the search.

Here are the conditions police must meet to search a cellphone during an arrest without a warrant:

1. The arrest must be lawful - This is the case for any situation; it just means if the arrest isn't lawful, then neither is the search.

2. The search must be incidental to the arrest and police need an "objectively reasonable" reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.

3. The nature and extent of the search are tailored to the purpose of the search. This means police activity on the phone must be directly linked to the purpose they give.

4. Police must take detailed notes of what they looked at on the device as well as how it was searched (e.g. which applications or programs they looked at, the extent of search, the time of search, its purpose and duration)

The ruling stated it's best that police wait to get a search warrant for the cellphone in order to protect privacy. Authorities would need one of the three purposes above (protecting police or the public, preserving evidence or discovering evidence) to proceed without a warrant.

Whether a phone is password-protected is not a determining factor, according to the ruling.

A suspect has the right to remain silent during an arrest and not give their password; but police are able to take the phone and try to unlock it.

The RCMP declined to comment further on the legalities of retrieving data from a smartphone.

In a statement to Global News, a spokesperson with the Department of Justice Canada said, "The Criminal Code provides a wide range of judicially authorized powers that police can use to carry out investigations. These powers range from wiretap authorizations, which allow the interception of private communications, to search warrants, which allow the search of property including computers and smartphones and general production orders, which compel the production of personal information by third parties."
READ MORE: Why the FBI can't hack an iPhone without help from Apple
According to the statement, before police can access these tools they must convince a judge there are reasonable grounds to believe that an offence has been, or will be committed, and that the investigation will produce evidence.

"Further, a wiretap authorization, a search warrant and a general warrant can also be accompanied by an assistance order issued by a court, which compels a third party to provide assistance where that assistance may reasonably be considered as required to give effect to the authorization or warrant," read the statement.

"However, there is no specific power in the Criminal Code to compel a third party to decrypt or develop decryption tools, nor is there any requirement for telecommunications services to provide these services."
- With files from Global News reporter Erika Tucker and The Canadian Press

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Can law enforcement legally access data on your smartphone in Canada?

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The debate over whether Apple should comply with a U.S. court order asking it to hack an iPhone belonging to one of the San Bernardino shooters has grown tense over the last week as tech executives, privacy experts and legal pundits weigh in.

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1.  Bronskill, J. (2017). Independent monitoring in store for Canada Border Services Agency. Global News. Retrieved from https://globalnews.ca/news/3460577/canada-border-services-agency-oversight/

2. CrashCourse. (2015). Search and Seizure: Crash Course Government and Politics #27. Retrieved from https://www.youtube.com/watch?v=_4O1OlGyTuU

3. Bogart, N. (2016). Can law enforcement legally access data on your smartphone in Canada?. Global News. Retrieved from https://globalnews.ca/news/2537715/can-law-enforcement-legally-access-data-on-your-smartphone-in-canada/

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The phrase "come back with a warrant" is included on this Padlet as it is generally required that a warrant be issued by the Supreme Court of Canada before a search can be conducted.

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8. Everyone has the right to be secure against unreasonable search or seizure.

Yesterday in a split decision the Supreme Court of Canada made a ruling that sets a terrible precedent. Police officers may now search a person's phone with no need for a warrant. This is a gross violation of our rights to privacy and leaves all citizens potentially exposed to abuses from law enforcement officers.

Phones today are essentially personal computers that are often packed with sensitive and personal information about their owners. This ruling indicates that some of our Supreme Court justices do not understand modern phones and view them as simply communication devices for talking and texting. Giving police the authority to search our phones without a warrant is akin to letting police search through our mail and file cabinets at home based simply on any suspicion that the officer wants to cook up to justify the search.

I understand that the majority of law enforcement officers are good people who would not abuse this authority. It has to be understood though that the majority is not good enough. That is why we have charter rights and protections from unlawful search and seizure.

Just today an article was written about a violent scumbag on the Edmonton Police Service named Mike Wasylyshen who despite a criminal assault conviction and numerous other offences just got a promotion to sergeant. Wasylyshen beat a man on crutches outside of an Edmonton bar and threatened to burn the victim's house down with family in it. Wasylyshen tasered an unconscious 16 year old boy 8 times and then beat the boy with the taser itself knocking out one of the boy's teeth. This lowlife cop also wilfully deceived a justice of the peace to wrongfully obtain a search warrant.

Why would an officer so clearly violent and corrupt still even be a part of the service? Oh, did I mention that Mike Wasylyshen's father used to be the Chief of the Edmonton Police Service?

Now in light of that, would you want somebody like Wasylyshen rooting through your personal information on your phone? Do you feel comfortable that the sole discretion to choose such searches lands on the shoulders of men like Wasylyshen? I am sure he is not the only bad cop out there and the Edmonton Police Service is not the only one that protects people like him.

Of course supplicants to big government love to say "What have you got to hide?" I will say this right now, none of your G-D damned business! I shouldn't have to explain why I don't want somebody to arbitrarily search through my personal files, communications and pictures.

I will indulge and lay out some scenarios anyway. Do I want a cop reading my personal communications with my wife? What if it is a small town and I have communications with my mistress? Will the cop remain discreet? What if my mistress is the cop's wife? How bad will the beating be? What if he posts the picture of me restrained while wearing lederhosen and being pummeled with handfuls of lime jello tossed by a hired gang of circus midgets wearing assorted lingerie to my facebook profile?

OK, I am making light but my point is that the number of things that a person may keep on their phone that they may want to keep private is endless. There may be sensitive business dealings or there may be things that may be considered less than moral but perfectly legal. All of these could get a person blackmailed, bankrupted or simply humiliated if in the wrong hands.

There indeed are situations where the search of a person's phone may be required in a criminal investigation. I contend that the need is not so pressing that it has to be done on the spot based on the arbitrary choice of a police officer though. A phone can be held and the need for a search can be demonstrated to a judge as a warrant is pursued. This oversight is important!

I have seen some people saying "Well, you should password protect your phone!". For one thing, I expect police can find and be provided means to bypass passwords. For another thing, I simply should not have to. Sure, it is wise to password protect. If I choose not to though, it does not mean I deserve to have my privacy violated. A woman shouldn't walk in dark alleys when wearing suggestive clothing but she still does not deserve to be raped if she makes such a poor choice.

Rights get eroded most effectively in increments. This story is sliding under the radar and people need to pay attention because our rights just got eroded by a large increment here!

The only party that has spoken up on this ruling that I can find so far is the Libertarian Party of Canada. Alas, they have no MPs at this time. Contact your MP folks and demand that this erosion of our rights be corrected as soon as possible.

You may be the next person Mike Wasylyshen pulls over when he is in a bad mood.

Technorati Tags: cell phones, Charter of Rights and Freedoms, Edmonton Police Service, lederhosen, Mike Wasylyshen, privacy, rights, search and seizure, section 8

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CANADIAN CHARTER OF RIGHTS AND FREEDOMS 8. Everyone has the right to be secure against unreasonable search or seizure. Yesterday in a split decision the Supreme Court of Canada made a ruling that sets a terrible precedent. Police officers may...

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This is a basic image that shows a police officer searching an individual at the side of a cop car. The police officer is only allowed to conduct a search on a driver if there are reasonable and probable grounds such as the plain view of drugs, alcohol or weapons are in the interior of the vehicle. Otherwise, the findings are not admissible to the court.

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This image is the emblem Canada Border Services Agency. The  Canada Border Services Agency is a federal agency that maintains and enforces boarder control,  and customs services.  They screen and search luggage and passengers for illegal substances or things not permitted in Canada. If there is any suspicious behavior in relevance to prohibited items, they legally detain the individual and search them or their items. They also look for inconsistencies between the passengers declaration, and seize items as appropriate and according to the paperwork.

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1. Morgan, C. (2014). Retrieved from http://corymorgan.com/stay-out-of-my-phone/

2. Justice Education Society. (2016). Topic 1: Overview of the Canadian Charter of Rights and Freedoms. Lawlessons.ca. Retrieved from http://www.lawlessons.ca/lesson-plans/1.3.overview-of-the-canadian-charter-of-rights-and-freedoms

3. Bronskill, J. (2017). Independent monitoring in store for Canada Border Services Agency. Global News. Retrieved from https://globalnews.ca/news/3460577/canada-border-services-agency-oversight/

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Article 1: Assessing the Effectiveness of Organized Crime Control Strategies: A Review of the Literature

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Article 1: Assessing the Effectiveness of Organized Crime Control Strategies: A Review of the Literature

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This article is about the seizure and forfeiture of assets following illicit and criminal activity. The purpose of these seizures are to deprive operations or cartels of their money flow and penalize crimes accordingly based on assets that are used to assist the crime (ex vehicles for drug smuggling). The article also lists which law enforcement members the Canadian Government use to carryout management and implementation of strategies of collection.

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4. Organized Crime Control Strategies and Their Effectivness (con't)
Money has been said to be the lifeblood of the drug cartels, enabling them to finance the manufacture, transportation, distribution, murder, and intimidation that are critical to their illicit activities (Beare, 1996:131). Operations to combat money laundering and to deprive such groups of the proceeds of crime can deprive them of this key flow of money. The forfeiture of assets obtained through crime also is said to remove the incentive from engaging in unlawful behaviour (Lyman and Potter, 1997:419). Furthermore, the forfeiture of assets-amounting to about $500 million a year in the US--can finance the prevention and control of organized and other crime (Abadinsky, 2003:323). It can also (at least theoretically) mitigate the damage to the economy occasioned by the large volumes of untaxed profits in the illicit marketplace (Albanese, 1996:226).

Seized and forfeited items can include cash, buildings, land, motor vehicles, and airplanes (Stahl, 1992). Forfeiture laws can pertain to assets that facilitate criminal conduct (e.g., cars used in smuggling, houses used to store contraband) and/or those that are the proceeds of crime. The forfeiture of crime proceeds can be quite complex as the government must prove the ownership of property and trace it to criminal behaviour. This latter task becomes more difficult when individuals keep converting the proceeds into different forms (Abadinsky, 2003:323).

Forfeiture has been criticized on the grounds that innocent parties have been harmed and that forfeiture laws have often been applied to low-level criminals. Innocent parties can include joint tenants, business partners, lien holders, and purchasers who have not been informed that a property subject to forfeiture proceedings was used in, or derived from, the criminal activity of others. In addition, these laws have been said to turn due process on its head (Abadinsky, 2003:326). Civil forfeiture proceedings, for example, are directed against property (independent of any criminal proceeding) alleged to have been used in criminal activity. In the American context, these proceedings require only that the government show probable cause that the property was implicated in criminal activity. The burden shifts to the property owner who must show by a preponderance of the evidence that this was not the case (Albanese, 1996:228).

Another objection to forfeiture is that the assets taken are often shared by law enforcement agencies, creating an incentive for these agencies to target the most wealthy, rather than the most dangerous offenders (Naylor, 2000).

Yet another concern centers around the storage and disposition of seized and forfeited assets. The most commonly seized assets are cash and cars, followed by boats, planes, jewelry, and weapons. Residential and commercial property is seized less frequently, but tends to have a higher monetary value (Albanese, 1996:230). Once assets are seized, they must be appraised and then stored and maintained, while ownership and third party claims are heard in court. In the event of a successful forfeiture proceeding, the property must be disposed of. Storage and maintenance can be profitable, but can also be costly. The disposal, too, may be difficult as no buyer may be found for a certain item. The US Marshal's service has over 200 employees assigned to handling assets seized by federal agencies and the US Custom's Service has more than 100 full-time paralegals to manage seized property (Albanese, 1996:230).

According to Beare (1996:171), the Canadian Proceeds of Crime legislation was not initially accompanied by measures to manage seized assets. She asserts that, "Unfortunately, no adequate provision was made for the management and maintenance of the goods seized by police." The challenges and liabilities involved in the seizure of certain properties were illustrated by the RCMP's seizure, in 1990, of the Ski-Montjoie facility in Quebec. Police investigations indicated that this resort was owned by drug traffickers who purchased it with money laundered through Switzerland. At the time of seizure, its market value was approximately $4.5 million. However, the government faced creditors whose claims totaled $2.5 million. Also, it had difficulty selling the property as land values in the area declined following the seizure (Beare, 1996: 171).

It became apparent that law enforcement agencies were not equipped to deal with property management and, hence, in 1993, The Seized Property Management Act was introduced to authorize the federal government to manage seized property and to dispose of it when forfeiture is ordered by the courts. A directorate was formed to carry out these and related tasks within the Department of Public Works and Government Services Canada.

There have been a number of high-profile seizures of property in Canada since the Proceeds of Crime legislation was introduced. One of the largest resulted from a drug investigation involving the RCMP, Vancouver Police Department, and the US' Drug Enforcement Administration. More than $15 million in property-primarily vessels and real estate-was seized in British Columbia and $57 million in property was seized in the US (Beare, 1997:122). From 1989-1993, Canadian police have seized assets of drug-related crimes totaling $72 million (Canadian Association of Chiefs of Police, 1993).

Over the last 12 years, the Canadian government has implemented various strategies to combat money laundering and to confiscate the proceeds of crime. In 1992, the Integrated Anti-Drug Profiteering (IADP) initiative was introduced. Three multi-jurisdictional investigative units were established. Based in Canada's three largest cities, these units comprised the RCMP, provincial, and municipal police personnel, Department of Justice counsel, and forensic accountants from Revenue Canada-Customs. Annual evaluations indicated that the integrated approach improved drug-related investigations and prosecutions (Gabor, 1994); hence, the project was expanded to 13 units that were now mandated to target a whole range of enterprise crimes (Department of Justice Canada, 2000).

No comprehensive, systematic evaluation of the forfeiture strategy has been undertaken. A Department of Justice Canada (2000:3) report indicates that, "Adequate information on resource utilization and costs, as well as long-term impacts on organized crime was not available." The evidence that is available, however, suggests that proceeds of crime prosecutions tend to be complex and time consuming. Gibbon (1994), for example, reports on two cases in 1994 that took four years to develop.

In the United States, forfeiture laws at the federal level have not been applied until quite recently. Between 1970 and 1980, the Rackateer Influenced Criminal Organization (RICO) and Continuing Criminal Enterprise (CCE) provisions were used in just 98 drug cases and assets forfeited amounted to only $2 million (Albanese, 1996:227). This record is poor when it is considered that more than 5,000 Class 1 violators were arrested by the Drug Enforcement Administration in that decade. These statutes were also designed to combat the infiltration of legitimate businesses by OC; however, an audit by the General Accounting Office revealed no forfeiture of "significant derivative proceeds or business interests acquired with illicit funds" (Albanese, 1996:227).

The Organized Crime Drug Enforcement Task Force Program (OCDETF) was established in 1983 in the United States. The 13 task forces around the US involve 10 federal, as well as state and local agencies. In the first two years of operation, the task forces had seized $52 million in assets in cases involving 1,408 offenders (Albanese, 1996:227). By the end of 1990, federal law enforcement agencies had seized $1.4 billion in cash and property. In 1991, the Drug Enforcement Administration seized property valued at $956 million (Bureau of Justice Statistics, 1992). Also, in 1992, several states reported forfeitures that exceeded the seed money used to generate them by ratios of 6:1 (Lyman and Potter, 1997:420).

Notwithstanding these and other enforcement efforts, the General Accounting Office asserts that their impact is unknown due to insufficient experience with the application of forfeiture laws (Albanese, 1996:227). Furthermore, the President's Commission on Organized Crime (1986:345) has noted that the reliability of information on the seizure of non-drug assets is undermined by double counting, decentralization, and variations in data gathering methods. According to a study cited by the Commission (Stellwagen, 1985), more than one-half of state and local officials could not estimate the value of confiscated property. The determination of the value of such property is an essential part of an overall analysis of the benefits of forfeiture laws.

Levi (1997: 12-13) argues that the UK experience shows that the proportion of crime proceeds confiscated is miniscule-far less than one percent by his calculations-because major criminals are often not convicted, forfeiture proceedings may be unsuccessful, and offenders may spend much of their proceeds, leaving them with far fewer assets than profits from crime.

An evaluation of the Australian experience also illustrates the limitations of forfeiture laws. Freiberg and Fox (2000) begin by pointing out that the determination of the deterrent effects of these laws is complex, as the effects of forfeiture must be disentangled from the effects of the sentence imposed for the predicate offence. The authors note that, in Australia, only 10 percent of all convictions are on indictable offences-the remainder are summary convictions-and only indictable offences can serve as the basis for confiscation applications. Thus, a significant proportion of crime proceeds acquired in the commission of federal offences is not recoverable via the proceeds of crime legislation in that country. Just over 10 percent of cases involving indictable offences-1 percent of all offences--are subject to a confiscation order.

In Australia, assets confiscated under the proceeds of crime legislation average between A$10 and A$13 million per year (Freiberg and Fox, 2000:250). When one considers that the proceeds of crime have been estimated to be as high as $9 billion a year, well under one percent of crime profits are forfeited. The authors, as well as other commentators in Australia, assert that this record reflects a low level of enforcement of confiscation laws and a minimal incapacitation effect on crime.

Furthermore, just a minority of the forfeitures involved persons affiliated with OC groups. The authors cite a study in Germany indicating that there, too, the most common forfeitures involve drugs or assets used in offences by consumers or small-scale dealers, rather than members of OC groups (Benseler, 1997). Further undermining the effects of forfeiture laws is the gap between confiscation orders and assets actually recovered. In the UK, less than one-quarter of the funds ordered to be confiscated between 1987 and 1993 were actually recovered (Levi and Osofsky, 1995:3). In Australia, the amount realized by pecuniary penalty orders and forfeiture orders was 28% of the value of restraining orders (Freiberg and Fox, 2000:253). As for the costs of confiscation, the Australian experience indicates that, at the federal level, the efforts are marginally profitable, as it is estimated that it costs roughly $75 to recover $100.

The Australian study identified a number of impediments to the success of forfeiture laws (Freiberg and Fox, 2000:259-260):

both in Australia and abroad, forfeiture is not viewed as a core function by law enforcement agencies;

coordination within and between agencies is lacking;

expertise is lacking in what is viewed as a highly technical and peripheral aspect of policing;

other than in those jurisdictions (primarily the US) where agencies can retain a percentage of the confiscated assets, little incentive exists to pursue the long and expensive forfeiture proceedings;

courts are often hostile to forfeiture legislation, interpreting these laws very strictly due to their perceived intrusion upon basic rights (e.g., their frequent reversal of the burden of proof).

Whereas asset forfeitures remove the racketeer's ill-gotten gains, the federal system in the US and other jurisdictions have civil remedies designed to eliminate the influence exerted by OC figures in legitimate businesses, unions, and other organizations (Giuliani, 1986:111). Under the RICO legislation in the US, court injunctions may require defendants to divest themselves of interests in tainted enterprises, may impose reasonable restrictions on the future activities and investments of an individual, and may order the dissolution or reorganization of any enterprise (Giuliani, 1986:111). While little information exists regarding the frequency with which these provisions have been used, Giuliani notes that that they have been used very infrequently.

Some labour unions, for example, have historically been dominated by OC. While prosecution has been unsuccessful in remedying the problem of these captive unions, court-ordered trusteeships have re-established democratic processes and thereby freed the union of labor racketeering. One of the best known cases involved Local 560 of the International Brotherhood of Teamsters in New Jersey (Goldstock, 1994:435). In this case, the district court granted broad permanent injunctive relief whereby the court enjoined two defendants from "any further contact of any kind" with the union and removed the union's entire executive board in favour of a trustee whose responsibility it was to ensure fair elections (Giuliani, 1986:112). In other cases, such remedies have been used to deal with racketeering in the hospitality and cement industries.

While systematic evaluations, including the costs of pursuing court injunctions, are absent in this area, Giuliani (1986:112) has been a strong proponent of these remedies. He asserts that they are a powerful tool for permanently dissolving criminal organizations and for preventing the infiltration of legitimate businesses by OC figures. He views these remedies as especially crucial in industries that have been particularly vulnerable to OC penetration. Giuliani notes that the incarceration of an OC lieutenant may disrupt operations but does not put the enterprise out of business. So long as OC's property remains, new leaders will replace those that have been imprisoned. These legal tools, according to Giuliani (1986:112) "have the power to permanently divest organized crime of its corrupt economic base."

These programs are designed to protect witnesses who testify in cases involving OC. They provide for the health, safety, and welfare of these witnesses, as well as their families. Such programs may involve the relocation of witnesses and their families, and the provision of new identities and jobs. In the United States, the program has stretched resources, as the number of individuals protected by the program has been far in excess of that anticipated. By the end of 1996, 6,500 witnesses and 15,000 dependents had entered the program (Sabbag, 1996). The annual cost exceeds $25 million, well in excess of the original estimate of less than $1 million (Albanese, 1996:193).

A major criticism of such programs is that they provide career criminals with "clean" backgrounds that they can use to prey on an unsuspecting public (Abadinsky, 2003). This is especially a concern as the allowance provided by these programs tends to be far more modest than the income these individuals can typically generate from crime. There are many documented cases of witnesses committing major crimes with the help of their new identities (Abadinsky, 2003:335). Another serious concern is that estranged spouses of those protected by the program have encountered difficulties visiting and maintaining a relationship with their children (Tulsky, 1987). Furthermore, the US Department of Justice does not always receive the cooperation of other federal agencies in obtaining military records, social security cards, medical records, and other documents (Rhodes, 1984:183; Mathews, 1990).

Rhodes (1984) asserts that the US program is largely tailored to career criminals and may not serve non-offenders as well. He describes a case in which a New York City businessman, upset with his brother's narcotics addiction, testified against OC figures with whom he had some legitimate contact. His information helped obtain the conviction of several racketeers and his courage was rewarded by advice provided by officials from the Witness Protection Program that he ought to hastily sell his lucrative business and home, and relocate to Texas. He was also advised to terminate any direct contacts with friends and relatives. The witness eventually committed suicide. This story and others like it suggest that there may be fewer incentives for non-criminals to participate in witness security programs (Mitchell, 1981). Many witnesses find the process of changing their identities and concealing their past highly stressful (Montanino, 1984: 503).

These programs do, however, appear to afford protection. From 1961-1965, prior to the establishment of the US program, the US Department of Justice lost more than 25 informants in OC cases (Kelly, Schatzberg, and Chin, 1994: 497). Hundreds of other prosecutions were stymied because witnesses feared for their lives. While about 30 witnesses who have left the US program have been murdered, none following program guidelines have met this fate (Sabbag, 1996). (Another source indicates that a protected witness in a drug case was murdered in Arkansas (Mitchell, 1981)). The program boasts a 97 percent success rate in protecting witnesses under supervision (Lyman and Potter, 1997:433).

Montanino (1990:127) asserts that, "Of all the [US] government's strategies for combating serious criminality, the Federal Witness Security Program has been the most successful." Giuliani (1986:115) adds that, since the program was established in 1970, virtually every major racketeering prosecution has benefited from the testimony of one or more protected witnesses. The US program has facilitated major defections from La Cosa Nostra (Jacobs and Gouldin, 1999). Until the 1980s, the only major OC figure who had broken the code of omerta was Joe Valachi. In the late 1980s and early 1990s, a number of mob figures facing the possibility of lengthy prison terms testified for the government in exchange for concessions in the charges against them and admission into the Witness Security Program.

Jacobs and Gouldin (1999:168) provide a list of high-profile mob figures who "flipped" and entered the program. These individuals helped the government in its civil racketeering suit against the Teamsters Union, and provided testimony in the "Commission", "Pizza Connection", and other prominent cases. In one of the most notorious cases, Gambino family underboss Salvatore Gravano testified against powerful John Gotti, head of that crime family. Kenney and Finckenauer (1995:333) assert that Gotti's conviction might not have occurred without Gravano's testimony and that, "There is no doubt that his [Gravano's] cooperation would not have been secured except under a guarantee that he and his family would be protected from retaliation by Gotti and his followers."

Kelly, Schatzberg, and Chin (1994:500) report that the record of the United States' Witness Protection program is impressive. They note that protected witnesses have helped convict over 89 percent of the defendants against whom they testified.

A 1984 study by the United States' General Accounting Office revealed a 75 percent conviction rate in cases involving the testimony of a protected witness (Albanese, 1996). The majority, but not all, of the defendants were OC figures. The GAO found that, in OC cases involving protected witnesses, twice as many defendants received prison sentences than in other OC cases. Eighty-eight percent of those designated as bosses or ring leaders were sent to prison, for a median time of 11.2 years. The GAO further found that just over 21 percent of witnesses admitted into the US program were arrested within the next two years. This figure may be modest in light of the fact that the typical protected witness has over seven arrests prior to their entry into the program. In addition, supervision by the US Marshal's Service may increase the likelihood of detection for criminal activity (Giuliani, 1986:116).

Albanese (1996:195) notes that the significant OC prosecutions resulting from the program must be weighed against the $25 million cost, the arrest rate of protected witnesses, and the occasional lawsuit filed against the government due to the criminal actions of a witness. He points out that the high cost of the program has brought increasing attention to easing witnesses out of the program, although this poses a challenge in the case of older individuals and those who have never held a legitimate job.

Overall, it is difficult to determine the extent to which the increased testimony by OC insiders in the last two decades was due to witness protection, as opposed to the reduction of charges, immunity, and the erosion of adherence to codes of secrecy by the more recent generation of OC figures.

In Canada, until 1995, witness protection programs were run by several police forces, including the RCMP (Ha, 1995). In 1995, the government tabled a bill to establish a national program. This review did not uncover any evaluation of any of these programs. Beare (1996:194) states that the current version of the program is under-funded and lacks "the infrastructure of training, support services, and policies needed to support the Canada-wide operation." For example, Canada lacks the facilities to house informers who are incarcerated, especially at the provincial level and in the case of women.

The RCMP's program costs over $3 million and protects 80-100 witnesses at any one time. About half of these witnesses have provided testimony in relation to OC cases. As with the American program, a number of lawsuits have been filed against the RCMP for allegedly failing to provide adequate protection for witnesses and their families, and for failing to provide new identities (Ha, 1995).

The United Kingdom, too, has no national witness protection program; however, an increasing number of police forces have established specialized units to protect witnesses (Fyfe and McKay, 2000). Witness relocation tends to be an option for just those witnesses facing the highest level of danger. An evaluation of the Strathclyde program in Scotland revealed that the average cost per case was considerably lower than other British programs-$6,000 as opposed to $20,000-$100,000. This difference was attributed to variations in the length of time witnesses spend in temporary accommodations, variations in benefits, and the more expeditious processing of cases in Scotland.

Police officers, prosecutors, and defence advocates tended to agree that such programs are invaluable, especially in certain types of cases (e.g., drug-related), where the presence of forensic evidence means that witness intimidation is one of the few avenues available to the accused and co-defendants to weaken the prosecution's case (Fyfe and McKay, 2000:289). Prosecutors noted that, without such programs, witnesses had often chosen to accept the penalties of not testifying rather than risk serious injury.

These professionals noted some concerns with these programs (Fyfe and McKay, 2000). One concern was that some witnesses, wishing to be relocated, would falsely claim that they were being threatened. Another concern was that relocation would not work, as protected witnesses would eventually return to their home area. Defence counsel were apprehensive about the prejudicial effect on the image of defendants of indicating in court that the witness had entered a witness protection program.

Witnesses interviewed in the Strathclyde study reported facing such incidents as having their house gas-bombed, having a shotgun to their head, being run over by a car, and receiving threats to their children. While many were relieved to learn about the possibility of being relocated, they were anxious about the impending loss of contact with family and friends. At this stage, some witnesses decide against relocation, while others feel they have no option. Generally, witnesses who were relocated felt more secure, but continued to experience anxieties and anger. The protected witnesses who testified in court (some were not compelled to give evidence due to changes of plea) had praise for their treatment. They were escorted to and from court and sat in separate waiting rooms from the other attendees.

Giving their evidence was a stressful event, as friends of the accused made intimidating gestures. Also, many of these witnesses faced aggressive questioning by defence counsel. Often, their motives were questioned and the suggestion was made that they were being rewarded for their testimony by being relocated. Many left court feeling angry and confused.

The majority (10 of 14) of the cases in which the interviewed witnesses testified resulted in a conviction. In the long term, anxieties about personal security persisted, especially following the release of the person against whom the witness testified. Over time, as well, many witnesses report becoming increasingly isolated from family and disenchanted with their new life. They note the importance of long-term psychological support.

Safety issues are a concern for other courtroom actors; i.e., prosecutors, judges, and jurors. Prosecutors and judges have been protected by bodyguards and have even been temporarily relocated during OC trials (Giuliani, 1986:116). Jurors, too, have faced threats and harassment, as well as been on the receiving end of corrupt offers. Various jurisdictions in the US allow for the empanelment of anonymous juries. In such cases, prospective jurors are ordered to withhold all personal information which would reveal the juror's identity.

Successful applications for an anonymous jury have been supported by sworn statements detailing the violent nature of the crimes alleged, the defendant's history of violence, specific threats or corruption by the defendants involving courtroom actors, and the anticipated publicity surrounding the case (Giuliani, 1986:117).

Objections to anonymous juries have been two-fold:

1. The failure to disclose the names and addresses of jurors deprives the defence of information necessary to mount a successful challenge; and,

2. The empanelment of an anonymous jury undermines the presumption of innocence by suggesting that the defendants are dangerous and are likely to intimidate jurors or offer bribes to them.

In addressing the first objection, Giuliani (1986:117) argues that a defendant has no inherent right to information about the name, address, or place of employment of a prospective juror. Such information is not critical to launching intelligent challenges. Individuals can indicate their area of residence and their occupation and still reveal information about their socioeconomic status without providing an address and place of employment. In addition, judges can screen prospective jurors for possible bias.

With regard to the second concern, that an anonymous jury undermines the presumption of innocence, Giuliani argues that instructions by the court explaining that anonymity is designed to prevent interference by outsiders should be sufficient. Also, the courts have consistently upheld orders protecting the anonymity of witnesses and have therefore not deemed that such orders would deprive the defendant of a fair trial. In fact, those serving on a jury in an OC trial and who are afraid because they have not been protected by anonymity may demonstrate more bias in their judgment.

This review has not uncovered any empirical evidence comparing the decisions rendered by anonymous versus other juries in similar OC cases. A study could evaluate whether jury anonymity affects conviction rates or increases the likelihood of successful appeals.

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4.5 Seizure and Forfeiture of Assets - Assessing the Effectiveness of Organized Crme Control Strategies: A Review of the Literature

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Canadian efforts to combat organized crime intensified at the end of the 20th century. This report reviews a broad range of studies from the western world that have assessed the effectiveness of organized crime control strategies. Much research is still needed as limited evidence exists in relation to most measures and the evidence that does exist is largely descriptive in nature.

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Article 2: Supreme court quashes drug conviction over illegal search

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Article 2: Supreme court quashes drug conviction over illegal search

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This article is about the search of a vehicle that did not follow the standards of the Charter.  During a cocaine trafficking case a police officer came upon a vehicle that followed the speed limit but did not have a front licence plate. Upon asking for the  drivers licence which the driver could not find, the officer did computer search which found the licence to be suspended and then arrested the driver. The officer then conducted an illegal search of the vehicle to find the physical licence but instead found 35 kilograms of cocaine. Though relevant to the trafficking case, this evidence was obtained in violation of the Charter and thus was dismissed.

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Canada's top court tossed out a drug conviction linked to the seizure of 35 kilograms of cocaine Friday, saying evidence obtained with "willful and flagrant" disregard for the Charter of Rights and Freedoms can't be used in trial.

The ruling was one of four handed down by the Supreme Court aimed at clarifying when tainted evidence can be included at trial and when a person is considered detained by police.

While the ruling did turf out the drug conviction, it did allow the submission of evidence in three other cases. The rulings underscore that any breach of rights must be carefully balanced against the value of the evidence and the facts of each case.

In the cocaine trafficking case, Bradley Harrison and a friend were driving a rental sport utility vehicle to Toronto from Vancouver in October 2004 when they were pulled over by an Ontario Provincial Police officer near Kirkland Lake, Ont. The officer thought it was suspicious the SUV was driving at exactly the speed limit and didn't have a front licence plate.

Even though the officer learned the vehicle was registered in Alberta and therefore didn't need a front plate, he carried on with the questioning.

Harrison said he couldn't find his driver's licence. A computer search revealed that it had been suspended. The officer arrested Harrison on that basis, but then said he searched the vehicle in hopes of finding the lost licence - even though it was by now irrelevant.

A search of the SUV turned up a box containing 35 kilograms of cocaine - drugs with a street value of between $2.5 million and $4.6 million.

Rulings overturned

While the trial judge and the Ontario Court of Appeal ruled the value of the evidence outweighed the charter violations, the Supreme Court overturned those rulings in a 6-1 decision.

"The drugs seized constituted highly reliable evidence tendered on a very serious charge," Chief Justice Beverley McLachlin wrote for the court.

"However, the seriousness of the offence and the reliability of the evidence, while important, do not in this case outweigh the factors pointing to exclusion. To appear to condone willful and flagrant charter breaches amounting to a significant incursion on the accused's rights does not enhance, but rather undermines, the long-term repute of the administration of justice."

While the court noted a police officer's "hunch" is a valuable investigative tool, it cannot replace "proper charter standards."

Public interest allows evidence: court

In one of Friday's three companion rulings, the high court ruled 7-0 to uphold convictions against Donnohue Grant, 18, saying his rights had been justifiably violated when police stopped him on a Toronto sidewalk because they felt he was behaving suspiciously.

The court agreed police didn't have reasonable grounds to question Grant and failed to advise him of his right to counsel before questioning him in November 2003. Three police officers stopped and questioned Grant, who admitted he was carrying a bag of marijuana and a loaded handgun. He was later charged with five gun offences and sentenced to a year in jail.

In its ruling, the top court said it was in the public's best interest to allow the weapon as evidence.

"The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers' mistake in this case was an understandable one," the court wrote.

While the breach of the man's charter rights weighs strongly in favour of excluding the gun from evidence, "the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission."

The fact that officers were working in "circumstances of considerable legal uncertainty ... tips the balance in favour of admission," the court wrote.

2 other appeals dismissed

The court also dismissed two other appeals from people who said evidence against them was obtained in violation of the charter.

In a January 2003 case from Saskatoon, a police officer pulled over a man who failed to stop at a stop sign, and asked for a breathalyzer test after noting he had red eyes, smelled of alcohol and seemed lethargic.

The man was acquitted of drunk driving charges by two lower courts, who ruled the breath sample couldn't be used as evidence because the officer didn't have reasonable grounds to ask for the test.

However, the top court disagreed, writing: "Since the officer had reasonable and probable grounds to make the breath demand, the demand was lawful."

In another 2003 case, a police officer stopped a man outside a liquor store in Cobourg, Ont., while a second man was being questioned by police inside the store on suspicion of using a stolen credit card.

The police officer was speaking to the first man, who was trying to get in his minivan, when he received information that the minivan's licence plate matched that of a vehicle being driven by someone who had used a stolen credit card earlier in the day.

The man argued his charter rights had been breached because the officer didn't inform him of his right to counsel until after he was in police detention. The man argued his detention started as soon as the officer told him to wait as he tried to get into his vehicle.

However, the Supreme Court disagreed.

"While [the man] was momentarily 'delayed' when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the charter," the ruling said.

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Supreme court quashes drug conviction over illegal search | CBC News

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Canada's top court tossed out a drug conviction linked to the seizure of 35 kilograms of cocaine Friday, saying evidence obtained with "willful and flagrant" disregard for the Charter of Rights and Freedoms can't be used in trial.

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Article 3 : Police found drugs on you? Read this…

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Article 3 : Police found drugs on you? Read this…

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This article is general information to the public about what an Unreasonable Search and Seizure is, what type of privacy is available to individuals, and what a reasonable search is. This article provides the rights individuals have against the search or seizure, and rights of privacy they have if they are in this situation.

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Unreasonable Search and Seizure Part 1:
What is Unreasonable Search and Seizure?
Section 8 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right to be secure against unreasonable search or seizure." It is important to understand what makes a police search unreasonable because evidence gathered in this manner may be excluded at trial. This can have important ramifications on the prosecution's ability to prove charges that rely on such evidence.

Traditionally, section 8 requires that state searches be conducted with a warrant; however, the result is not always so simple. In some situations warrants aren't necessary when it would be impractical. This may be the case when ensuring a police officer's safety in the course of an arrest, when the police have a reasonable suspicion of wrong doing or when there is simply no time to obtain a warrant in the circumstances. Essentially, section 8 means that a search requires a warrant and if one is not provided the police must demonstrate why it was reasonable to proceed without one.

Before determining whether a police search has intruded on a person's rights it must be established that the individual did in fact have a reasonable expectation of privacy. Only where a state examination intrudes upon some privacy interest does the action constitute a 'search' within the meaning of section 8." Otherwise, a warrant is unnecessary and the evidence will not be questioned.

Therefore, the basic question under section 8 is two-fold

1. Did the accused have a reasonable expectation of privacy?

2. If so, was the search conducted in a reasonable manner?

What is a Reasonable Expectation of Privacy?

The Supreme Court of Canada has recognized three main forms of privacy, namely: personal, territorial and informational. Personal privacy refers to bodily integrity, in particular, the right not to have one's body touched. Territorial privacy refers to "the home, where our most intimate and private activities are most likely to take place" Finally, informational privacy refers to biographical material that reveals intimate details about lifestyle and identity.

In order to determine whether an individual has a reasonable expectation of personal, territorial or informational privacy the court will consider the totality of the circumstances in any given search.

When considering the circumstances it is important to note that the relevant factors may change based on the form of privacy in question. For example, when considering territorial privacy the court will look at property ownership and the ability to regulate access or exclude people. In one case the Supreme Court ruled an accused, Edwards, did not have a reasonable expectation of privacy over narcotics he had hidden at his girlfriend's home. He had no right to exclude people from her house despite possessing a key. Therefore, the search in that circumstance was not unreasonable and the evidence was admitted.

In all disputed police searches it is necessary to demonstrate both a subjective and objective expectation of privacy in the subject matter. Subjective expectation can be demonstrated by the actions and beliefs of the person under search. If someone locks their property in a public locker they will still subjectively assume that they have a right to privacy despite leaving their possessions behind.

Objective expectation may be harder to prove. Just because Edwards personally believed his drugs were safe from search at his girlfriend's home does not mean he was correct. Some objective considerations are as follows:

What is the location of the search? Certain locations objectively provide less privacy. For example, in an airport or courthouse it would be impractical to obtain a search warrant for everybody who enters.

Was the informational content of the subject matter in public view? Garbage left on the curb is objectively unlikely to garner an expectation of privacy given that it has been publicly abandoned.

Is the information already in the hands of third parties?

Does the information expose any intimate details of the accused's lifestyle, or information of a biographic nature? While some information, such as a high hydro bill for a marijuana grow-op, may be damning evidence it does not constitute biographical information because it does not expose intimate details of one's personal life. Objectively, there is no need for privacy over such data.

If, in light of all these questions, the accused is able to demonstrate a subjective and objective expectation of privacy then the analysis moves onto the second question, was the search conducted in a reasonable manner?

What is a Reasonable Police Search?

The basic test to determine whether a search has been conducted in a reasonable manner is three-fold.

1. Permission to search is provided by an impartial and independent party (a Justice),

2. Evidence, provided under oath, must satisfy the Justice that there are reasonable grounds to suspect that an offence had been committed,

3. that evidence must satisfy the Justice that the police have reasonable grounds to believe that evidence of an offence may be recovered.

The reason why a search should be conducted with an independently provided warrant is that Section 8 is intended to prevent unjustified searches before they happen, not to validate them after the fact.

Without a warrant there will be a presumption that there are no reasonable grounds for the search to have occurred. It is not enough that police merely assume that evidence may be found. When searches are conducted without warrants there is a possibility that the ends will justify the means. The police may not have had enough proof to obtain a warrant, but now that evidence has been found the search can be validated after the fact. For example, in R v Evans police approached the Evans' home and smelt marijuana. They had no justification to suspect that marijuana was present. They never would have received permission to "sniff" the home from a Justice. For that reason the police search of the home based on the odor was unreasonable and excluded at trial.

When no warrant is obtained the standard that police must meet in conducting a search is that of a reasonable suspicion. "Suspicion" is an expectation that the targeted individual is possibly engaged in criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon probable grounds. Searches conducted without a warrant, require after the fact scrutiny of the grounds for the "reasonable suspicion" and must be rigorously examined.

In Conclusion

This is a complicated area of the law and one that is constantly debated before the Supreme Court. Therefore, consultation with legal representation is a must when attempting to argue that a police search has been conducted inappropriately. However, it is possible to summarize the broad strokes of a Section 8 analysis.

If a person has a reasonable expectation of privacy based on both a subjective and objective analysis of the situation, and this privacy is breached, evidence discovered can only be held against the accused if the search was conducted with a warrant or under reasonable suspicion that evidence of a crime would be discovered.

Searches that are neither warranted by a Justice nor reasonable under the circumstances may be excluded at court if allowing it would bring the administration of justice into disrepute. To find out how evidence is excluded and learn more about the legal concept of "disrepute" turn to Unreasonable Search and Seizure Part 2: Excluding Evidence under the Canadian Charter.

Footnotes

1. Canadian Charter of Rights and Freedoms.

2. R v Campanella.

3. R v Fearon.

4. R v Kang-Brown.

5. Hunter v Southam Inc, at para 11.

6. Ibid.

7. R v Tessling, at para 18.

8. R v Tessling, at para 20.

9. Ibid, at para 21.

10. Ibid, at para 22.

11. R v Tessling, at para 23.

12. R v Edward.

13. Ibid, at para 45.

14. Ibid.

15. R v Tessling.

16. R v Buhay.

17. R v Campanella.

18. R v Patrick.

19. R v Tessling.

20. Ibid, at para 27.

21. R v Plant.

22. R v Edwards, at para 45.

23. Hunter v Southam Inc, at para 11.

24. Ibid, at para 27.

25. Ibid, at para 11.

26. R v A.M.

27. R v Kang-Brown, at para 75.

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Read this if police found drugs on you - Search and Seizure Laws

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What is Unreasonable Search and Seizure? Section 8 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right to be secure against unreasonable search or seizure." It is important to understand what makes a police search unreasonable because evidence gathered in this manner may be excluded at trial.

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1. Government of Canada. (2015). 4.5 Seizure and Forfeiture of Assets - Assessing the Effectiveness of Organized Crime Control Strategies: A Review of the Literature. Justice.gc.ca. Retrieved from http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr05_5/p6.html
2. CBC News. (2009). Supreme court quashes drug conviction over illegal search. CBC News. Retrieved from http://www.cbc.ca/news/canada/supreme-court-quashes-drug-conviction-over-illegal-search-1.858648
3.  Armoured Suits. (2015). Police found drugs on you? Read this…. Armoured Suits. Retrieved from https://armouredsuits.ca/articles/police-found-drugs-search-and-seizure-laws/

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The accused, Thanh Long Vu, was suspected of electricity theft. Police obtained a warrant to search his home, but made no mention in the Information to Obtain that computers might be seized and searched. In the course of the search, a marijuana grow operation was discovered, and evidence obtained from the search of a computer was used to connect Vu with allegations of marijuana production and electricity theft.

The issue before the Supreme Court of Canada in this case was whether a warrant to search a location automatically extends to computers found in that location, or whether specific judicial authorization is required in order for computers to be searched. Upon considering this question, the Supreme Court unanimously concluded that the privacy interest in computers is greater than the privacy interest in a filing cabinet or a cupboard. On this basis, specific judicial authorization is necessary in order for a computer to be searched:

"[24] The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view."

The Court did not to go so far as to find that the manner of a computer search must be specifically authorized before the fact, but did note that the scope of search must be connected to the purpose of the warrant or else the search itself would not be "reasonable" within the meaning of Section 8:

"[61] By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so."

Despite the Court's conclusion that specific pre-authorization was required for the search in question, it was also recognized that police believed in good faith that the warrant was sufficient, and did not step outside the purpose of the warrant in collecting evidence against the accused:

"[74] Balancing these factors, I am of the view that the evidence should not be excluded. The police believed on reasonable grounds that the search of the computer was authorized by the warrant. While every search of a personal or home computer is a significant invasion of privacy, the search here did not step outside the purposes for which the warrant had been issued and it did not include forensic examination. The evidence obtained was reliable, real evidence which was important to the adjudication of the charges on their merits."

On this basis, it was determined that the manner of the search did not bring the administration of justice into disrepute and that the evidence should be admitted at a new trial.
Decided by the Supreme Court of Canada on November 7, 2013.
Click here for the full text of the decision.

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The accused, Thanh Long Vu, was suspected of electricity theft. Police obtained a warrant to search his home, but made no mention in the Information to Obtain that computers might be seized and searched.

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GNED 1308- PADLET assignment Pranita Bhajan