Thursday, November 13, 2014

Police "shoulder surfing" accused's texts via casino CCTV camera is a Charter privacy violation

A judge of the Supreme Court of British Columbia in R. v. Ley and Wiwchar, 2014 BCSC 2108 has just held that police peeping on an suspect's text messages displayed on his blackberry screen via high-powered casino CCTV cameras was a violation of the Charter and would have required a wiretap order to make it permissible. From the decision:

[48] Moldaver J. in Telus Communications Co. concluded that the investigative technique used in that case was substantially equivalent to an intercept under Part VI and in my view the same can be said about the technique of using zoom cameras in the casino. Rather than seeking a disclosure of the messages sent by the applicant from the service provider, the police chose to read them in the process of being sent with the use of a camera. That, in my view, is substantially equivalent to an intercept under Part VI.

[49] As I have said, I am not aware of another way that a copy of text messages can be surreptitiously obtained from someone’s handheld communication device other than by photographing the messages or by obtaining a copy from the service provider. Based on Telus Communications Co., an authorization under Part VI would be required for the latter and should be required for the former.

[50] There was no evidence to suggest that the police could not have obtained a copy of the video footage taken of the applicant after it had been recorded by obtaining a production order, nor was there evidence to suggest that they could not have obtained copies of the text messages sent and received by the applicant during the time that he was at the casino, from the service provider. By instead choosing to photograph the applicant’s messages and retain the recorded footage the police bypassed the authorization requirement that, in my view, would otherwise have been necessary.

Summary of Conclusions

[51] Considering the totality of the circumstances in this case, I have concluded that the applicant’s rights under s. 8 of the Charter were violated by the use by the police of surveillance cameras in the casino to photograph messages on his Blackberry. If I am wrong in that conclusion, then in my view an authorization under Part VI of the Code was required because the actions of the police amounted to an interception of the applicant’s text messages.

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