Over the last several months, numerous articles have been posted discussing the development of a marijuana breathalyzer. The theory is that through the miracle of science (or a complex technical formula the explanation of which is not relevant to this blog post) a sample of a person's breath will reveal the concentration of marijuana in their bloodstream. This is similar to alcohol breathalyzers, though the process by which the sample is analyzed and the marijuana detected is vastly different.
Many groups like MADD Canada have pushed for a mechanism of roadside testing for drivers suspected of being impaired by drugs. They see the development of these tools as a victory in the battle against impaired driving. But will a marijuana breathalyzer really help anything?
I say no.
This summer has been unbelievably hot in British Columbia, and as a consequence of the heat there have been an inordinate number of forest fires. The Government has already spent over $100 Million fighting these fires, with over 200 still burning in the province. It has been costly and devastating.
But some politicians have been using forest fires as an argument to justify taking your car. That's right. The BC Government is currently considering whether they can impound your car because of forest fires. Now, if you're a rational British Columbian like me, you're probably wondering what the connection between forest fires and your vehicle is.
Let me tell you.
In May of this year, the Supreme Court of Canada heard arguments in two cases on the BC Government's Immediate Roadside Prohibition scheme. I was fortunate to be granted leave to appeal the decision in the Wilson case, and presented my argument to the court first thing that morning. The room was packed with lawyers who have more experience at this level than me, who had been practicing for years, and for many of whom it was one of many trips they have already made in their careers.
There were two cases being heard that morning - the Wilson case and the Sivia/Goodwin case. The second case was about the constitutional challenge to the IRP laws, while my case pertained to whether an officer has to have reasonable grounds beyond just the reading on the ASD in order to issue the prohibition.
This month has been an interesting month insofar as the development of the law pertaining to privacy and Charter rights in the digital age.
The first development came with the release of R. v. Spencer from the Supreme Court of Canada. This case concerned the application of the Person Information Protection and Electronic Documents Act to demands made by police to Internet Service Providers for subscriber information. Without a warrant, police attempted to obtain personal information about the subscriber to a particular IP address that would link him to accessing, possessing, and making child pornography available to others. At issue was whether the police could rely on powers set out in the PIPEDA as broad authorization to demand, without a warrant, this information from the ISP.
The Court unanimously concluded that internet subscribers have a reasonable expectation of privacy in their internet activity. The subject matter of the search was not only the name and address of the subscriber, but information about their internet activity. It is generally understood that internet browsing is done under the veil of anonymity. As such, internet activity engages what the Court described as significant privacy concerns. The PIPEDA does not grant search powers to the police, and the purpose of the legislation is to protect personal information, not to disclose it.
That said, the evidence was ultimately admitted as the police were acting in good faith and in their belief that they were following the law.
Following this, the BC Court of Appeal released its reasons in R. v. Mann. This case dealt with the power of police to search a cell phone for its contents, incidental to a lawful arrest. At common law, police have a power to search incidental to arrest. They may search the offender and surrounding area for evidence related to the offence. During the search of Mr. Mann, police seized a BlackBerry cell phone. They then downloaded the entire contents of the phone without a warrant.
The Court of Appeal found that there is a significant privacy interest in the contents of a cellular phone. Relying on the Supreme Court of Canada's decision in R. v. Vu, the Court found that people have a heightened privacy interest in the contents of their computers and cell phones. Essentially, in the digital age, all of our personal lives are contained on our devices. At paragraph 120, the Court wrote:
It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.
However, as with Spencer, the evidence was still admitted. The Court concluded that the police were acting in good faith and that at the time of the investigation, the law on cell phone searches was not as developed and settled as it is now.
But if the evidence is not excluded, what does this mean?
Many people get lost in the fact that the evidence has. nonetheless, been excluded. The fundamental reasons behind the inclusion of the unlawfully obtained evidence in these cases has to do with the lack of clarity in the law at the time of the searches.
That logic will not apply in the future, now that the law has been clearly identified by the higher courts. This same result was achieved in R. v. Evans, a 1996 SCC decision. That case pertained to a "sniffer search" undertaken by using the common-law power to knock and approach a door. The Court concluded this was an unlawful search but admitted the evidence because the police were acting in good faith. It is now generally accepted that sniffer searches of this nature, conducted without a warrant, are unconstitutional and evidence is not so freely or readily admitted as a result of these searches.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.