Virtually all criminal cases can now have computer and electronic privacy components. In the past several years, there have been rapid advances in computer and communication technologies and government agencies are sharing information more than ever before. Law enforcement has taken full advantage of this and increased their ability to gather your private information.
All of the following types of offences can have significant electronic implications:
- Criminal Harassment
- Identity Theft
- Internet Fraud Schemes
- Internet Luring
- Possession, Accessing or Transmitting Child Pornography
- Internet Stalking
New Police Techniques
In addition to regularly obtaining records such as bank documents, home utilities data and other personal subscriber information, the police have begun to use new technologies to locate and track people of interest. The police routinely seize GPS data from cell phone providers, and like their American counterparts, Canadian police forces have begun to utilize cell site simulators or International Mobile Subscriber Identity Catchers (such as Stingrays and Hailstorm devices). Further, the police have the ability to track the digital footprint of many who use the internet.
Once the police find the person they are looking for, they will often seize cell phones, personal computers, digital cameras and other electronic storage devices and subject these items to extensive forensic analysis. This can allow the police access to private information such as call histories, text messages, emails, photographs, internet history and personal records and documents. Forensic examinations can allow the police to recover “deleted” items and access data on a computer that the user might not even know was there.
What if the Police Have Done this to Me?
The law has struggled to keep up with how to protect personal privacy in view of such invasive searches. Personal privacy in the electronic age is a rapidly developing area of litigation under the Canadian Charter of Rights and Freedoms. Once the police have your private information, the Crown prosecutor can use it to build their case against you.
In many cases, it will be necessary to vigorously fight the legality of these searches and defend your Constitutional privacy rights. Our firm has been at the forefront of this developing area of litigation and have challenged virtually all manners of search and seizure including:
- Wiretap intercepts (where the police record phone calls and text messages)
- Cell phone searches
- Computer searches (including stored information and social networking activity)
- Bank record seizures
- Telephone subscriber information
- Personal documents seized from vehicles and residences
In addition, our firm has argued one of the leading the cases in the Supreme Court of Canada that is expected to shape the law as it relates to computer searches.
Often you will not know your private information is in the hands of the police until it is too late. Regardless of what type of charge you may be facing, it is vital to have a lawyer who is experienced in this complex area who will fight to keep this type of evidence out of court.
R v O.V.
O.V. was charged with various offences related to child pornography found on his computer. This case involved complex and nuanced technical and legal issues. The technical aspects included expert evidence on computer forensic analysis, peer-to-peer programs, computer memory and specialized software. Legally, the case involved numerous search and privacy issues.
Mr. McKay and Ms. Ferg represented O.V. at preliminary inquiry and trial. At trial, O.V. was found not guilty of accessing and trafficking in child pornography but guilty of possession. This conviction was appealed and a 3-member panel of the Alberta Court of Appeal unanimously agreed that O.V. should not have been convicted. The conviction was quashed and the Court entered an acquittal. The Crown was not pleased with this outcome and has appealed the case to the Supreme Court of Canada.