Suchergebnisse

Cover -- Table of Contents -- ACKNOWLEDGMENTS -- CHAPTER 1 INTRODUCTION: THE CONTOURS OF JURISDICTION -- CHAPTER 2 STATE JURISDICTION: DRIVERS OF CHANGE IN CANADIAN PRACTICE -- CHAPTER 3 THE JURISDICTIONAL STATUS QUO IN CANADA AND INTERNATIONALLY -- CHAPTER 4 EXTENDED TERRITORIALITY VERSUS EXTRATERRITORIALITY: A KEY JURISDICTIONAL DISTINCTION -- CHAPTER 5 JURISDICTION OVER THE INTERNET? -- CHAPTER 6 WEIGHING THE SCALES ABOUT ACTING EXTRATERRITORIALLY -- CHAPTER 7 CASE STUDIES OF EXTRATERRITORIAL JURISDICTION -- CHAPTER 8 A PROSPECTIVE FRAMEWORK FOR EXTRATERRITORIAL ACTION -- BIBLIOGRAPHY

This book sets out and examines the law governing criminal procedure in Canada. It explains the body of rules and principles that govern the investigation, prosecution, and adjudication of any offence enacted by Parliament for which an accused person would have a criminal record if found guilty by a court exercising jurisdiction under the Criminal Code. These include such things as the rules by which police powers are exercised, the right to counsel, search warrants, interim release, and procuring attendance of witnesses.This third edition updates the law in all areas of criminal procedure. The chapter on powers of search and seizure has been completely rewritten to take into account significant new decisions, including, among others, Spencer, on internet anonymity; Vu, on searches of computers; TELUS Communications, on text messaging and wiretap authorizations; MacDonald, on safety searches; and Fearon, on search of cell phones incident to arrest. It also covers the various statutory changes made to search powers by the Protecting Canadians from Online Crime Act.

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that:The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert entries and searches on private property over a two-month period.That is perfectly true. It is quite possible, however, that the reason it is true is that Parliament has decided that there ought not to be a power to conduct "an unlimited number of covert entries and searches on private property over a two month period." Courts have so far been failing even to consider the possibility that the reason some of these powers do not exist is because Parliament has decided that they should not exist.The distinction which so far has not been given attention in the case law is between searches which are not authorized by any provision because they are of an unanticipated type, and those which are not authorized by any provision because they were anticipated and were deliberately ruled out. One would think, for example, that in setting minimum standards for physical searches of a place in section 487 (standards which correspond to the constitutional minimum, according to Hunter v. Southam Inc.), Parliament has stated quite clearly that physical searches based on less justification than that contained in those standards are not authorized. The question, is this type of search allowed? would not be an unanticipated question: it would be one that was anticipated and answered in the negative. To allow the general warrant provision to authorize both unanticipated and deliberately excluded searches is to ignore a crucial distinction.

The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points.For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then observes of the Personal Information Protection and Electronic Documents Act (PIPEDA). 7(3)(c.l)(ii) authorizes disclosure of information for law enforcement purposes." They conclude from these facts that it would not be reasonable to expect privacy in information supplied to the airline.However, this reasoning seems inverted. Section 7(3)(c.l)(ii) actually only authorizes disclosure for law enforcement purposes to a government institution that has "identified its lawful authority to obtain the information." That is also the essential message of the Westjet website — that the rule is non-disclosure and the exception is when disclosure is "required by law." To say that information will be disclosed when there is, for example, a warrant requiring its disclosure, is not to diminish the objective reasonableness of an expectation of privacy. Quite the contrary, the recognition that something like a warrant will be required before the information is released stresses precisely that there is a reasonable expectation of privacy in it.

Checklists of factors are a helpful feature in assisting courts to determine how to find the proper balance in a variety of situations. Properly used they can help to achieve a certain level of uniformity and predictability, though they do not guarantee it. However, it is also important to recognize that checklists are a way of getting at the right analysis — they are not in and of themselves that analysis. Checklists also create the possibility of becoming encumbered in specifics and therefore losing sight of the overall goal.The Supreme Court decided two decades ago that the reasonable expectation of privacy standard was a normative standard. That is, it is meant to be a reflection of an entitlement: "the standards of privacy that persons can expect to enjoy in a free and democratic society." In reaching this conclusion, the Court specifically rejected the notion that a reasonable expectation of privacy could be assessed by means of a "risk analysis." They held that "privacy would be inadequately protected if an assessment of the reasonableness of a given expectation of privacy were made to rest on a consideration whether the person concerned had courted the risk of electronic surveillance."The Court has done much to give structure to the reasonable expectation of privacy analysis since then, formulating factors in Edwards, Tessling, and more recently Patrick. At no time, however, has the Court ever suggested that its fundamental approach has changed: the reasonableness of an expectation of privacy is still to be judged normatively, not against the practical risk of being observed through technological means.

Two recent Court of Appeal cases (R. v. Jir and R. v. Bush, both reported ante, pp. 53 and 29) are examples of tendencies in some recent decisions to weaken the "reasonable grounds" standard for arrest. That the reasonable grounds standard for arrest is important is beyond question. As the Supreme Court of Canada has said,Without such an important standard, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state.In subtle and sometimes unintentional ways, however, the reasonable ground standard is being undermined. This short article will examine two ways in which this can be seen: in the approach to what level of certainty the standard entails, and in the approach to how the objective aspect of the standard can be proven. Both Jir and Bush are relevant to each of these issues.