Judge rules po­lice don’t have to di­vulge elec­tronic sur­veil­lance equip­ment

Calgary Herald - - CITY - KEVIN MARTIN KMartin@post­media.com On Twit­ter: @KMart­inCourts

Priv­i­leged in­for­ma­tion — which the Crown says will di­vulge po­lice in­ves­tiga­tive tech­niques in the use of cell­phone snoop­ing tech­nol­ogy — can re­main se­cret, a judge has ruled.

In a heav­ily redacted de­ci­sion re­leased Mon­day, Jus­tice Glen Poel­man agreed with Crown pros­e­cu­tor Brian Holtby that Calgary po­lice don’t have to dis­close the make, model and soft­ware of the mo­bile de­vice iden­ti­fier (MDI) de­vice it de­ploys.

The Court of Queen’s Bench judge agreed di­vulging such in­for­ma­tion to the de­fence could be used by crim­i­nals to de­feat the de­vice.

In July, Poel­man held a closed­door hear­ing in which even de­fence lawyers were ban­ished af­ter Holtby as­serted in­for­ma­tion sought by coun­sel Kelsey Si­tar and Clay­ton Rice con­sti­tuted priv­i­leged in­ves­tiga­tive tech­niques.

In the hear­ing, Sgt. Scott Camp­bell of the elec­tronic sur­veil­lance team gave ev­i­dence on the use of MDIs by the Calgary Po­lice Ser­vice.

Only Holtby, who pre­sented the ev­i­dence on be­half of the po­lice, and lawyer Anil Kapoor, who was ap­pointed as a “friend of the court” to cross-ex­am­ine Camp­bell and ar­gue against the Crown’s po­si­tion, were per­mit­ted to at­tend.

Poel­man is­sued a rul­ing on Aug. 15, which was sealed while Holtby and Kapoor worked on redact­ing the judg­ment to com­ply with his or­der not to di­vulge the priv­i­leged in­for­ma­tion.

In his de­ci­sion, Poel­man said re­lease of the in­for­ma­tion could as­sist crim­i­nals in de­feat­ing the ef­fec­tive­ness of MDIs.

“As I in­di­cated in my sum­mary of the ev­i­dence, Sgt. Camp­bell is aware that de­vices ex­ist to de­tect de­ploy­ment of MDI units,” Poel­man said.

“He is not aware of their ef­fi­cacy gen­er­ally, nor whether they would work in par­tic­u­lar against CPS’s model,” he said.

Kapoor had ar­gued the risk of per­sons en­gag­ing in crim­i­nal ac­tiv­ity us­ing the in­for­ma­tion to de­feat MDI tech­nol­ogy was spec­u­la­tive.

He sug­gested the Crown should have called ev­i­dence to show counter-sur­veil­lance prod­ucts would de­tect de­ploy­ment of the Calgary po­lice de­vice ei­ther by in­tro­duc­ing test re­sults, or through ex­pert ev­i­dence.

“Re­quir­ing that de­gree of cer­tainty would be too heavy an onus in mak­ing out a priv­i­lege claim,” Poel­man said.

“Not every po­lice se­cret will be priv­i­leged,” he said. “But where the ev­i­dence sup­ports a gen­uine, rea­son­ably based con­cern about ad­verse ef­fects on law en­force­ment func­tions, the test is met.

“I con­clude that the make and model in­for­ma­tion (and re­lated de­tails) con­cern­ing CPS’s MDI unit fall within in­ves­tiga­tive priv­i­lege,” Poel­man said.

“The pub­lic knows that CPS has an MDI de­vice, but does not know its par­tic­u­lar method of … ob­tain­ing cell­phone iden­ti­fiers.”

Poel­man must still de­cide whether the ac­cused’s rights to make full an­swer and de­fence, as pro­tected by the Char­ter, su­per­sedes the in­ves­tiga­tive priv­i­lege.

He’ll hear fur­ther ar­gu­ment on that next month.

Si­tar and Rice’s clients, Tarek El-Rafie and Barakat Amer, are charged with five other men in con­nec­tion with gang-re­lated at­tempted mur­ders.

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