I think the distinction is that this isn’t a case of the police “not knowing”; this is a case where they couldn’t know. There’s no taint of disingenuousness or willful ignorance. No lawyer or judge in the country could have honestly answered the question “Do we need a warrant?” because the matter wasn’t settled.
All well and good, but an irrelevant argument in this particular case, where the police apparently followed the law as they understood it, and as approved by the trial judge and the appellate judges.
Your argument appears to assume that every time there’s a breach of the Charter, the police have acted with recklessness and malice. That just isn’t the case, as this case shows. Life is not all black and white. There are considerable shades of grey.
A discretionary exclusionary rule gives the courts, who are fully independent from the Crown, the power to consider those shades of grey on a case-by-case basis. They can weigh the severity of the Charter breach, the conduct of the police, the impact of exclusion on the particular case, and the overall repute of the administration of justice.
Why would constitutional protections from the government apply to actions someone takes through a third party such as an ISP?
If the person possessing illegal materials wants to keep them private, he or she can keep them in a personally protected location.
I would compare it to a person storing his printed child pornography materials in someone else’s building. If that person allows the government to access the material, the defendant may have a civil claim against the third party, but, the government hasn’t gone onto the defendant’s property without a warrant.
What am I missing?
“Everyone is presumed to know the law” is a bedrock principle. Why is that? Why can’t people argue that they didn’t know that the law prohibits a certain act and expect that to lead to a full acquittal?
Right. So, why should I care that the government didn’t intend to violate my rights? Is the government going to repeal the idea of a strict liability offense, or is there some value in the absolute prohibition of some actions without regard for the intent of the defendant?
IOW, if enough of the government agrees that someone or some class is horrible enough, the exclusionary rule doesn’t apply to them and the police can harass them at will.
Show us the law that stated that the penalty against the state for the violation by the state is a full acquittal of the accused.
I don’t need anyone putting words in my mouth. All I’m talking about is the exclusionary rule being obeyed, which Canadian courts theoretically should be doing already. Northern Piper is trying to justify the courts ignoring their own rules, and that is a dangerous precedent indeed.
Dereleth, I did not put words in your mouth. You asked a question and you were provided an answer, albeit not one to your liking.
Your understanding of the law missed the point that the law in question was specifically drafted to permit just what the court did. Yes, there are exclusionary rules, but they do not trump the constitution. It is not a matter of the court ignoring its own rules, but rather the court following the constitution in its application of the law to the matter before the court.
I encourage you to follow the link in post 20 and read the full text, and then have a read through Lamer’s reasons in Collins with regard to bringing the administration of justice into disrepute. There are many ways to bring the administration of justice into disrepute. One way is for the police to trample person’s rights. Another way is for serious wrong doers to escape the law on trivial technicalities. The constitution was drafted so as to avoid the excesses of black-and-white applications, and instead take a nuanced approach that helps justice prevail.
I think Muffin has already answered your question well. Another way of saying it is that the guilt or innocence of the police actions is not what is being tested here, it’s whether the evidence thus obtained should be admissible under the exclusionary rule, which is an entirely different question. Furthermore, the police actions involved, not “ignorance of law”, but a venture into an untested area of it. The ruling now clarifies it, and that’s the real news here – and good news for privacy.
The celebration is about the fact that the Harper Conservatives have been trying for years to put through various pieces of ill-conceived draconian “law-and-order” legislation including open season on Internet privacy, and this stops the worst of it in its tracks.
So you endorse the RIAA being able to send threatening letters to grandmothers and little kids, threatening them with ruinously extortionate lawsuits for allegedly downloading a song, just because they feel like it? Even if said grandmothers or little kids happen to be innocent? This is exactly what the DMCA has enabled in the US, and what lower courts have been trying to protect the public from in Canada. The SCC decision now enshrines that protection – not protection against illegal activities, but protection against arbitrary and capricious threats of litigation without oversight by the judicial system.
Not true. You’ll note that this case went to the Supreme Court. The SCC decision in fact overturned the Ontario Appeal Court decision you quoted, and ruled that the police officer’s actions were such an egregious violation of Charter rights that, despite the trunk full of cocaine and the seriousness of the offenses, the evidence in that case should be inadmissible and, as that evidence was the whole basis of the Crown’s case, it ordered an acquittal of the accused.
Dereleth, with respect to my asking you to show us the law that stated that the penalty against the state for the violation by the state is a full acquittal of the accused, I suggest that you start by reading the S.C.C.'s 1971 decision in Wray, which sets out: “I am not aware of any judicial authority in this country or in England which supports the proposition that a trial judge has a discretion to exclude admissible evidence because, in his opinion, its admission would be calculated to bring the administration of justice into disrepute” and which agrees with the decision in an earlier case: “The evidence was admitted and the principle stated that both in civil and criminal cases the test of the admissibility of evidence was relevancy to the matters in issue. If it is relevant, it is admissible, and the court is not concerned with how it was obtained.”
Now like it or not, that was the law prior to the Charter, and the Charter only steps in to exclusion of evidence when the criteria set out in post 20 are met, including the criterion that the admission of evidence could bring the administration of justice into disrepute.
Thus I asked you to “Show us the law that stated that the penalty against the state for the violation by the state is a full acquittal of the accused,” for had you searched for such law, you would have concluded that there is no such law, and that prior to the Charter, the law was even more contrary to your assertion than it is now under the Charter vis a vis the case at hand.
In other words, we have exclusionary rules, but they are not what you think they are. Have a boo at the cases – once you dig into them, I hope you’ll enjoy seeing how various judges have approached the problem over the years.
We’re argung in circles. Essentially, the essence is this, from the NYTimes article:
Plus as noted earlier, the case in question went to the Supreme Court which reversed the ruling, saying in this case, the excuse the police used to search the car was so lame it was a violation serious enough to put the administration of justice into disrepute.
i.e. you can’t make up lame excuses to search a car; since 99% of the time you will find nothing but the average citizen essentially has no recourse. What’s the police department going to do if someone complains, if their policy is “search anyway, you can get away with it.” I assume that was part of the logic - if they had let this go, then every cop would assume they could search when they felt like it and be forgiven if they found something, leaving citizens with no protection.
Another very interesting distinction vs. American law - this guy was caught with 77 pounds of cocaine! What was his sentence in Canada? 5 years. Since the case went all the way to the Supreme Court, that’s presumably without a plea deal. With time off for good behaviour, he’s out in 1/3 his sentence, 20 months. What’s the sentence for transporting 77 pounds of cocaine in the USA?
I can’t comment on Canadian law, but we have accepted that people have a reasonable expectation of privacy (the threshold requirement for application of the Fourth Amendment in the US) in certain intermediaries: mostly telephones and mail. The phone company could listen in on your calls if it wanted to, but that doesn’t mean the police can tap your phone just because they asked the phone company. Given that the Internet possesses many of the characteristics of phones and mail, and to some degree is replacing them, it makes sense to extent some of the same protections to it.
The exclusionary rule is not some sort of self-evident requirement; we didn’t have it in the US until the 1960s (at least not under the federal constitution). The language of the Canadian charter is pretty heavily qualified and certainly appears on its face to give the court discretion.
You expect privacy in your phone calls, for example. You don’t expect the phone company to listen in on them except in very serious circumstances - i.e. to deal with your complaint the line is full of static, or that a prank caller is harassing you - generally at your invitation. The same would apply to ISP traffic - there’s a reasonable expectation of privacy.
The third party might stumble upon serious violations and take concerns to the police, but at that point, the police are investigating and they should ask a judge for permission. Without credible probable cause they won’t get that permission - with it, they will. This is essentially the distinction between a fishing expedition and a valid investigation.
If you use LimeWire and your files are publicly offered to all comers, well, that was your doing. If the police then search for objectionable material in a situation where they know objectionable material is offered to the public, that’s fine. Once they identify the content and wish to investigate further, the information they have already should be enough to get a warrant. LimeWire (hopefully) did not give them name and address of the offender - that information is NOT (usually) available to the public. If it is not… well neither is “everyone knows he is a dealer” valid grounds to search a person’s car when the police feel like it. They need specific grounds and that is why they pass it by a judge - to get approval that the criteria is specific enough.
I would rather compare your analogy to someone storing their stash in a rented storage locker. They pay for the privilege (like a service with an ISP or phone company) and they expect that nobody wandering by can just look inside and the owner will not open lockers simply by the random request of third parties, or even open their books to show the name and address of the renter. The locker renter would at least expect the police, if searching, to get a warrant.
As for “ignorance of the law” - everyone grows up with the old saying “ignorance of the law is no excuse”. This goes doubly for police - these are people whose job it is to search, examine, and collect evidence, for a living, as trained professionals. Surely they should be up to date on the current state of the law. The only valid excuse is "this law was not - in place / decided by the courts - at the time
Really Not All That Bright and md2000, many thanks 
nm
There’s been an exclusionary rule under the federal constitution for a century. It was established in Weekes v United States (1914):
However, it originally only applied to federal prosecutions. In Wolf v Colorado (1948), the Court held that the exclusionary rule under the federal Constitution had not been incorporated under the 14th Amendment and therefore did not apply in state prosecutions:
The Court overturned that decision 13 years later, ruling in Mapp v Ohio (1961) the exclusionary rule had been incorporated and did apply to the States:
Sorry, no, I don’t see any “is/ought fallacy” here – the protections that now exist in Canada against arbitrary and capricious legal threats pertaining to copyright infringement allegations are very real and tangible – not just the requirement for a court order to be able to obtain subscriber names associated with IP addresses, but additionally, if such court order is granted, judicial oversight over what actions the plaintiff is allowed to take:
(I inserted my original comment to provide context for what I was replying to. Also corrected a blooper as per the square-bracketed word – I obviously meant to say the SCC decision isn’t intended to provide protection for (not “against”) illegal activities, it provides protection against arbitrary and capricious accusations of such.)
The exclusionary rule in Canada is defined by s. 24 of the Charter:
That is not an absolute rule of automatic exclusion, but a qualified one. The drafters of the Charter rejected an automatic exclusionary rule and instead chose this approach, which the courts have been following consistently. The courts are not ignoring their own rules.
In Canada, strict liability offences are required to have a defence of due diligence. The principle of due diligence can include arguments based on the uncertainty of the law and that the individual took reasonable steps to ascertain the law and comply with it.
That’s much the same rule as the concept that police officers acted in good faith in executing a search.
One of the major issues with an RIAA-style shakedown in Canada is that in Canada, a lawsuit most often results in the loser paying the winner’s legal bill (at the judge’s discretion, some rules apply, yada yada - IANAL) Thus anyone who trolls like the infamous US cases is opening themselves up for some serious financial losses if they sue grannies and underage children or otherwise make a mistake. Also, unlike the USA judges are appointed for life, not elected, with input from the bar associations, so they are more likely to be willing to take unpopular stances and consider the rights of all parties.
Perhaps Piper can comment better on this - but my impression in Canada, is that the legal community is much smaller, the judges more likely to sense bullshit and call it, and it’s a lot lot harder to be a slimy lawyer. Standards are high, laws are less often changed and are less convoluted since they are not usually thoughtless knee-jerk reactions to public displeasure, and problem lawyers are more likely to be tossed from the bar. (Or maybe we just hear more about stupid and sleazy lawyers in the USA)
So in general, as in the quoted case, judges are unlikely to simply allow a plaintiff on flimsy evidence to harvest a massive amount of user data for who-knows-what. Based on the restrictions, it’s obvious the judge in that case had educated himself on the problems with similar cases down in the USA and was determined that any legitimate copyright case not cross the line into obvious extortion. Plus, IIRC, the maximum damages of non-commercial copyright violation were capped at $5000 - so there’s not a lot of money to be made anyway. No Jammie Thomas $1.5M judgements to threaten people with.