Unconstitutional? Yes, it is. But, who cares - it's irrelevant because the police acted reasonably.

Factual Questions
1

Today, the Supreme Court of Canada issued its ruling in what had been anticipated, if not trumpeted, beforehand as promising to be a ‘momentous’ and ‘important’ decision involving on-line privacy in Canada. Here is the CBC’s report on it.

I’ll summarize the essence of the case by noting that it revolved around a guy who was convicted of possessing child porn. The key point, though, was that despite there being no search warrant having been issued or presented, the police became aware of said possession by virtue of them asking for, and receiving from, his ISP the name, address, etc. of the person attached to the IP address to which the porn was being downloaded.

The guy claimed that his conviction should be thrown out since he had been convicted in large part on the basis of a warrantless search, the latter being contrary to the Canadian Constitution. His case made its way to the Supreme Court of Canada (SCOC) which, as I noted above, announced its decision earlier today.

SCOC’s opinion (if I’ve read and interpreted things correctly) is that, indeed, the search was unconstitutional - warrants are required for such a search to be allowed. That said, notwithstanding the unconstitutionality of the process by which the guy was convicted, his conviction must still stand! Why? Well, apparently because the “police acted reasonably and in good faith, so the administration of justice would be impaired if the evidence gathered by searching Spencer’s home in this particular case were thrown out of court”.

So let’s see if I’ve got this straight: despite the fact that warrantless searches of this sort are contrary to the highest and most overarching ‘laws’ of the nation, they can still be used to help convict people so long as the cops are acting in good faith with their search. That’s about it, eh?

First question: in all seriousness, have I understood things correctly?

Second question: what exactly is the purpose of a constitution if ‘one offs’ are allowed? This case shows one example of a such a ‘one off’. Here’s another (link goes to a case where SCOC said, yes, this guy’s freedom speech/expression was unconstituionally infringed but that’s okay because the speech and ideas he promulgated were hateful, etc.).

Thanks!

2

There are lots of cases (and journal articles) discussing the propriety and necessity of the exclusionary rule. It does not automatically follow that illegally obtained evidence should be suppressed at trial. “Why should the criminal go free because the constable erred?” is the way it is often expressed. Don’t like the cops actions? Sue them, or get them fired. But, you’re still going to jail. (I’m not advocating this view, just expressing it. )

Canada apparently doesn’t follow the US exclusionary rule:

Tough cases make bad law, and all that. Child pornographers are not the kind of defendants that the Court wants to help. I once lost a motion to suppress evidence in a murder case that I’m certain would have been granted if the evidence discovered was anything less damning than the murdered body.

3

I ain’t a lawyer, and I ain’t a Canadian, but I do know that in some countries (the US of A is a prime example) what’s important is the LETTER of the law, the exact wording and the way she’s written. In other countries, the SPIRIT of the law is more important than the letter of the law, and so, yeah, oops, we shoulda got a search warrent but we didn;t – technical screw-up, but you’re goin’ to gaol anyhow.

4

Frankly, I think I’m surprised that there’s an expectation of privacy in one’s IP address, such that an ISP cannot voluntarily comply with an informational request.

5

Haven’t read that case so can’t comment on it, but the Canadian exclusionary rule is not automatic. It gives the court the discretion to admit or exclude, depending on the facts of the case.

One situation where the evidence may be admitted, even if there was a breach of a Charter right, is if the law was not clear.

Not all searches in Canada require a warrant, and not all information-gathering amounts to a seizure.

If the police in good faith believed that they were complying with the law, but the court rules for the first time on that issue and says that they had not, is it fair to exclude the evidence?

The police would be put on notice that in future cases they would need to comply with the new standard. A ruling to admit based on good faith only applies to that first case.

With respect to the Keegstra case, the OP is not reading the SCC case correctly. The Court ruled that the Criminal Code provision was constitutional.

6

Well, since you asked.

The exclusionary rule punishes recklessness and malice and makes sure the rights of the merely suspected are protected from both prosecutors and police looking to look good and prosecutors and police looking to harass a politically inconvenient private party or individual. The Crown has a military and the mantle of sovereignty, giving it awesome powers both at trial and in the outside world. The only checks on those powers are those Canadian society has created constitutionally in order to grant the Crown’s governments legitimacy. When the Crown erodes those checks, it is sawing away at the branch it’s sitting on, especially when it erodes a check which protects individuals from asshole or motivated prosecutors and police officers.

7

Thanks, I appreciate such a thoughtful set of responses.

And, before I forget, with respect to the Keegstra case (where freedom of expression was limited when it came to “hate speech”) let me state absolutely and unequivocally that Keegstra was a slimeball. That said, and as is probably apparent from my earlier post, I am a firm believer in the dictum that “sunlight is said to be the best of disinfectants”.

Finally, Northern Piper, in what sense have I misread the Keegstra case? I, am of course, not disputing your expertise; just trying to learn.

Thanks!

8

The guy was not a “child pornographer”, he merely possessed material that had been produced by a child pornographer, who was very likely beyond the reach of Canadian jurisdiction.

At a minimum, a police action that circumvents the constitution should at the very least have the effect by itself of preventing a person becoming a victim of an ongoing or future crime.

An arrest in this case would do nothing to mitigate any present or future harm being done to any identifiable victims.

9

It was this phrase in your OP:

The SCC did not say that Keegstra’s freedom of expression was unconsitutionally infringed.

Under our Charter, there are two steps to the analysis. First, has there been an infringement of one of the Charter rights? second, even if there has been an infringement, can the government justify it under s. 1 of the Charter, which reads:

If the government can meet this test, then there has not been an unconstitutional infringement of the Charter right.

That’s the point in your OP that I disagreed with. In R. v. Keegstra, the majority and the dissent in the SCC agreed that the hate publication provision of the Criminal Code infringed freedom of expression.

The point in dispute was whether that provision could nonetheless be justified under s. 1 of the Charter. The Court split 4-3 on that issue, with the majority ruling that although there had been an infringement, it was justified under s. 1 and therefore overall, the provision was constitutional. The dissent disagreed, and would have held that the provision could not be justified under s. 1.

Given the ruling, it is not correct to say that Keegstra’s freedom of expression was unconstitutionally infringed. The SCC ruling meant that the provision was constitutional and properly applied to Keegstra.

10

IANAL, Piper has said it better, but IIRC the rule in Canada is that the test is “does the action bring the administration of justice into disrepute”? An honest and reasonable belief by the police that they were acting correctly (if the judge agrees) probably does not. There is no blanket exclusion as found in US law, where that single violation however innocently, poisons and excludes the entire tree of evidence. A confession beaten out of someone, a house blatantly searched without a warrant, someone stopped on the street for no reason - obviously not good for reputation of justice and police should have known better.

The guy may not have been making chil pornography, but the whole case started and revolved around the fact that he distributed it. He was caught from using LimeWire, where the files you download are typically also available for upload. When they searched, they also found the files; distribution and possession - not good things.

Also, Canada does not have free speech. ( David Ahenakew - Wikipedia ) The weasel words in the compromise that is our constitution, and the ability of parliament to override many constitutional provisions, guarantees that. As a result, like the UK with its ASBO’s, terrorist trials, etc. - Canada can and does slowly chip away at the fabric of a free society. Fortunately our Supreme Court still adheres to the principles of common justice, since apparently there is no other balance against a majority government.

11

Now that a day has passed, it’s interesting to see the many headlines in Canadian papers/newsites and associated reader comments proclaiming that the decision was a great victory for privacy and that everyone should rejoice in SCOC’s reaffirmation of the right to it.

Now, I am most surely not disappointed by the SCOC’s clear statement that anonymity on the internet is a key element of its use in a free society. My ‘jubilation’ is tempered, though, by the realization that so long as it’s conducted in “good faith”, a violation of that privacy is just fine according to that same Court and the meaning of our Charter. So, a pretty hollow ‘victory for privacy’ IMO. Phrased differently, I don’t see what all the celebration is about.

12

Karl, please see my post # 5.

In this case, the Court ruled that the police were acting in good faith, because the law was not clear and they had a reasonable belief that they did not need a warrant.

But on a going forward basis, that good faith argument will not be available. The police will know that in this type of case, they will need a warrant.

Think of this as a transitional case. The ruling on the need for a warrant will apply generally henceforward. The decision allowing the evidence in, based on good faith, likely only applies to this case.

13

A quote from the ruling, paragraph 77:

In short, at the time, the police did not know any better.:slight_smile:

14

Northern Piper is correct. And here is the specific quote from the ruling, paragraph 77 (emphasis mine):

15

This is really the critical point as you have emphasized.

But, do you really think that henceforth all searches of the sort discussed in this case will require warrants? More importantly, do you honestly believe that in the future failure to seek/produce a warrant will lead to the evidence’s exclusion?

My concern is that there can, and will, be more than one ‘first case’. In other words, different situations, different players, different potential consequences of not conducting ‘the search’, etc., may be held by future courts and judges to justify a warrantless search and/or not to bring the law into disrepute. Yesterday’s judgment notwithstanding, and however they may be rationalized, in the future some warrantless searches are bound to be permitted and their evidence admitted.

In fact, you, yourself, seem to be allowing for the same thing to occur in the future:

That’s the thing with having anything other than an all or nothing exclusionary principle - you can never be certain if evidence discovered through a warrantless search will, or won’t, be considered admissible. And, of course, that opens up the potential for abuse even if it happens only rarely. In my (admittedly naive) take on this, it’s better to be as clear as possible - nixing any potential for prevarication by the searchers before it can occur.

ETA: If a mod sees this, would you please consider moving this thread to Great Debates. I think I erred putting my OP in GQ since the discussion really pivots around the desirability (or not) of having an absolute exclusion principle. Thanks!

16

Ahenakew isn’t a very good example for you. As your link describes, his conviction was overturned on appeal with a new trial ordered, and that retrial resulted in an acquittal.

I suppose you could respond that even though Ahenakew’s speech was found not to be inciting hatred, speech that does incite hatred is still criminal and hence Canada does not have free speech. But by this standard no nation has free speech. Even the US has all manner of speech that is either criminal (uttering threats, inciting violence) or actionable on a civil basis (libel and such). That Canada’s legal constraints on the right of free speech are marginally tighter than the US’s doesn’t seem like a very sound basis for making a blanket statement that Canada doesn’t have free speech.

Don’t get me wrong, I’d prefer to see the hate speech laws repealed, or at least circumscribed more tightly to inciting actual hateful actions. But there’s no need to overstate the case.

17

But this is the point of the ruling, and the point Piper makes.
The law was NOT clear; actions both ways had happened in courts, and decisions both ways had been handed down by lesser courts.

Canada does not automatically exclude evidence obtained illegally or in questionable circumstances, or in circumstances deemed by later decisions to be illegal. The key test is “does it bring the administration of justice in disrepute?”

Asking for an name attached to an IP address without a warrant has so far not been thought to be improper or a violation of rights. Indeed, if/should the same case get to US supreme court, (if it has not already) there might be a guess about which way the justices would rule. So it’s not obvious to the cops or the public that they should not have done what they did. (from now on, it is obvious.)

For example, unlike the USA, Canada probably would not let a guy walk after they found 5 pounds of cocaine just because it took an extra 3 hours to call his lawyer, or some such. However, if the location of the drugs was beaten out of him by the cops, they probably would. The first case, not a serious blight on the justice system. The second, I sure hope it’s considered as “bringing the administration of justice into disrepute”.

So yes, the next time something “iffy” occurs, the defendant might once again establish a principle but still lose.

We haven’t had a ruling, for example, on the equivalent of “Stingray”. US police forces use secret gear to collect a long list of cellphones and their GPS location; in one case, to show the defendant was near the location of each robbery. The argument is kind of odd - the device impersonates a cell phone tower. The feds argue the data is free for collecting by the phone company, therefore you are voluntarily sharing it, therefore they are free to collect it, no different than if you kept tweeting your location to the whole world. Not only that, they are free to do this for hundreds or thousands of cells that wander into range, they argue, to catch one person.

So there’s another case where technology needs the court to make a decision. (If unlike in the USA, the feds don’t immediately scream “Top secret, classified, terrorists, terrorists!” and hide all data about the technology). Before the courts decide, the police probably will use it. If they use it to convict someone of speeding, probably the court will also toss out the conviction (if they rule the way I want). If they use it to convict someone of murder, and there’s plenty of other evidence, the court will likely NOT toss the conviction. Basically, an honest small “oops, I didn’t know” by the police in a major case is not a get out of jail free card. Once the police know what the rules are… the free ride does not apply.

18

Yes, to both questions. The law is now clear: a warrant is required in these cases. If the police don’t seek a warrant, knowing the state of the law, they aren’t acting in good faith. That will tip the balance to exclusion. That’s how it’s worked in the past, in other cases where there’s been a good faith argument due to uncertainty in the law.

One general point to bear in mind: s. 8 of the Charter does not require that there always be a warrant. There are certain areas where warrantless searches are not an infringement of s. 8. So yes, in the future, evidence from some warrantless searches will be admitted: but that’s because certain categories of searches do not require a warrant, so the search is constitutional; no need to consider exclusion under s. 24.

The reason the drafters of the Charter chose a discretionary exclusionary rule was that they felt that an automatic exclusion was too inflexible. The reasoning is that some violations of the Charter are more serious than others, and the courts should have discretion to consider whether to admit the evidence, in spite of the violation.

The automatic exclusionary rule in the US has had a lot of critics over the years. For instance, Justice Cardozo famously said: “The criminal is to go free because the constable has blundered.”

But, what about the case where the constable has not blundered? The passage from the Court quoted by AdamF indicates that the trial judge and the three appellate judges all held that the constable in this case did not need a warrant; the Supreme Court has overruled them.

If the exclusionary rule is to keep the police in line when they have breached the constitutional requirements, how can it serve that function in a case where the lower courts have held that the police acted properly, but the Supreme Court retroactively changes the law after the police have acted?

It’s important to remember that there are two different things going on in a criminal prosecution where a constitutional issue is raised: first, there is a prosecution brought on behalf of the people, alleging that the individual has committed a criminal offence, and the argument from the accused that his constitutional rights have been infringed. The court hearing the case has a duty to consider both of those important public values: that the public has a right to have allegations of criminal misconduct heard and determined, and the accused has constitutional rights which must be respected.

That balancing function leads the court to consider the severity of the constitutional infringement. Where there is an argument that the police acted in good faith, that may tip the balance in favour of admission, because there is no misconduct by the police that needs to be sanctioned.

Finally, I think you need to have faith in the ability of the courts to determine when there has been intentional abuse by the police. That’s what the courts do every day: consider the motivations of people appearing before them. This is simply a specific example of that duty of the courts.

19

It just occurred to me that it may be helpful to quote the wording of the exclusionary rule, found in s. 24 of the Charter:

S. 24(2) is the provision in issue. Its reference to bringing the “administration of justice into disrepute” is meant to give the courts the duty to consider the overall effect of admitting or excluding the evidence, taking into account both the impact on the accused, and the overall reputation of the administration of justice, if a criminal prosecution is short-circuited by the exclusion of relevant evidence.

20

For an excellent explanation of s. 24 (1) and (2) of the Canadian Charter of Rights and Freedoms, read through a judges’ school paper by someone who is a retired provincial Chief Justice and who heads a province’s civilian commission that oversees police conduct.