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