BIG BROTHER IS WATCHING (EVEN MORE)

by: Geoff Read

Heard of Fog Reveal?  If you’ve got a cell phone, it’s time you did.  It’s a police cell phone surreptitious mass surveillance tool that police in the U.S. are using to search hundreds of billions of records from 250 million mobile devices and then use the data to create location analyses that police call “patterns of life”.  George Orwell wouldn’t be surprised, even if we might be.  Check the story entitled Tech tool offers police ‘mass surveillance on a budget’ that Garance Burke and Jason Dearen published on September 2, 2022 in AP NEWS: 
<https://apnews.com/article/technology-police-government-surveillance-d395409ef5a8c6c3f6cd
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Wikipedia says Fog Reveal is a software product created by FOG Data Science that aggregates location data from mobile applications used by local law enforcement officers in the United States to track individuals without requiring a search warrant.  It relies on advertising ID’s which are unique numbers assigned to each device.  These numbers do not contain the name of the phone’s user, but can be traced to homes and workplaces.

Burke and Dearen discovered that it empowers the police to follow people’s movements months back in time.  Like pretty much all technology, it has no morality of its own, but may be used for better or worse.  So, we think that solving crimes is a generally worthy endeavour, but we nevertheless constrain the means by which it is done in order to protect other worthy values, like privacy.  The issue in the case of Fog Reveal seems to be the lack of oversight and accountability.  Burke and Dearen say there is little data about its use and most law enforcement agencies won’t discuss it, so it has raised concerns among privacy advocates that it violates the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure.  For us, think s. 8 of the Charter.  This is currently U.S.-based, but you can book it that it will be coming soon to a (police) station near you (if it isn’t here already).

Burke and Dearen say that “Despite privacy advocates’ concerns about warrantless surveillance, Fog Reveal has caught on with local and state police forces. It’s been used in a number of high-profile criminal cases, including one that was the subject of the television program ‘48 Hours’.”   They note that defense lawyers worry there are few legal restrictions on law enforcement’s use of location data and that’s a gap police agencies exploit, and often don’t disclose in court.  Privacy advocates worry Fog’s location tracking could be put to other novel uses, like keeping tabs on people who seek abortions in states where it is now illegal.  State use of location data is still being weighed by the courts, and in 2018 the U.S. Supreme Court ruled that police generally need a warrant to look at records that reveal where cellphone users have been.

The tension between law enforcement and civil liberties is a continuing story – watch out for it.

PERSONATING DEFENCE COUNSEL

Defence lawyers have a lot to watch out for.  For example, they are vulnerable to false accusations of suborning witnesses.  Now, here’s another.  Recently, there were reports of letters, purporting to come from lawyers and laced with drugs, being sent to jails.  A couple of defence lawyers here in Ontario reported that their letterhead had been copied and placed on envelopes sent to inmates in gaols.  In one lawyer’s case, the bogus letter was sent to Kingston pen and the lawyer got a call from a correctional officer, in accordance with their policy, that the inside of the envelope contained meth.   Needless to say, the lawyer was very grateful to be informed and said the officer understood how concerning this is to lawyers and was actively investigating the matter including reaching out to Canada Post to figure out who mailed the letter.  The lawyer said that this apparently used to happen once a year but is now happening thrice weekly, at least in Kingston.  The worrisome part of this is that there seems to be little one can do to prevent this. 

To give you a better idea of just how prevalent this is, consider this, courtesy of Toronto lawyer (and ace researcher) Yossi Schochet:
https://www.bbc.com/news/uk-england-birmingham-54587165
More than 300 pages of “solicitors letters” were laced with drugs and sent to inmates during a prison’s Covid-19 lockdown. The letters, marked as being from inmates’ legal teams, were intercepted at HMP Birmingham in June.

https://www.govtech.com/news/paper-letters-soaked-in-drugs-leads-jail-to-digitize-mail

Paper Letters Soaked in Drugs Leads Jail to Digitize Mail

Chatham County, Ga., jailors have intercepted letters and envelopes addressed to inmates laced with fentanyl, a synthetic and inexpensive opioid that is 50 to 100 times more potent than morphine, along with other drugs.

https://www.thetimes.co.uk/article/inmates-receive-photocopied-letters-to-halt-rise-in-drug-soaked-mail-hp93c7z58

Inmates letters photocopied to block drug-soaked mail

https://abcnews.go.com/Politics/bureau-prisons-employees-hospitalized-drug-laced-prisoner-mail/story?id=84395117

Bureau of Prisons employees hospitalized over drug-laced prisoner mail

https://www.washingtonpost.com/news/true-crime/wp/2016/03/10/jail-inmates-now-getting-drug-soaked-paper-through-mail-jails-moving-to-stop-it/

Jail inmates now getting drug-soaked paper through mail, jails moving to stop it

https://www.sun-sentinel.com/local/broward/fl-jail-mail-drugs-20150216-story.html

Jail mail soaked with drugs was a big ‘hit’ with inmates, feds say

https://www.corrections1.com/contraband/articles/woman-jailed-over-drug-laced-love-letters-to-boyfriend-cof5ELc9YoGKyc2m/

Woman jailed over drug-laced love letters to boyfriend

Part-time mail clerk stumbled onto the scheme after finding drugs underneath the stamp of a letter that wasn’t sticking properly

BETTER DIGITAL DISCLOSURE

Digital Crown Disclosure is now routine but nevertheless varies from place to place and case to case.  Sometimes, “bookmarks” are included to facilitate accessibility, but frequently are omitted.  It’s not of much import where the volume of written material is small, but can be a very inconvenient and unnecessarily time-consuming where there is a large amount to be searched and accessed.  The “bookmark” makes it that much more easier and quicker, so if those bookmarks are missing on big files, ask the Crown to restore them.  Practising is challenging enough without unnecessary impediments like crippled Disclosure.  

CROWN JOINDER OF MULTI-JURISDICTION CHARGES FOUNDERS ON 11B

Even a complex case allowance was unable to stave off a s. 11(b) attack in R. v. Gharibzada, 2022 ONSC 4667.  As defence counsel Sahil Azad puts it, Justice Goodman granted an 11(b) Application to stay a 51 count Indictment relating to fraud, ruling that the Crown could not join counts from all over the province (Toronto, Kitchener, Peterborough, Ottawa, Newmarket) into one single jurisdiction (Kitchener), and then ask for complex case deductions.   It might be simplistic to conclude that there are no deductions from the calculation of the delay period when the Crown wants a joinder, but this is certainly an example of the old adage that “actions (joinder) have consequences (stay for delay)”. 
As his honour stated (para. nos. indicated),

[3] The applicant stands charged on a multi-count Indictment in relation to fraud-related offences and other crimes of dishonesty. The allegations span fraudulent activities that were committed over a two-year period against various businesses across Ontario totalling more than $500,000.
[4] The 51 counts before the court are the product of three major investigations done by three different police agencies. 

The original arrest on one set of charges occurred in June, 2019, a detention order was made and sustained on a bail review but, on January 22, 2020, the applicant was released following another bail review.  On February 23, the Crown decided to combine all three investigations into one prosecution and a joint Information was sworn on April 9, 2020.

His Honour went on to observe 

[24] The Crown agrees with the applicant’s calculations of total delay and net delay, albeit the Crown postulates two timeframes, both of which still exceed the 30 month guideline. While the amount exceeds the Jordan timeframe, the Crown asserts that the remaining delay is not unreasonable given the complexity of this case...
[25] The Crown submits that when multiple sets of charges are combined and dealt with in a single trial, the second set of charges may be treated separately for the purposes of s.11(b)...
[44] I am not persuaded by the Crown attorney’s second scenario, which tends to bifurcate the combination of the numerous charges joined in one indictment, in order to sustain its position for the purposes of this application.  It is not disputed that the prosecution chose to join all of the informations into one matter for trial.
[45] I am inclined to follow R. v. Belcourt, 2017 ONSC 3934, wherein Frageau J. based his calculation for delay based on when the first information was laid.  See also R. v. Milani, 2014 ONCA536,120 O.R. (3d) 641, at paras. 48-49.
[46] When considering the jurisprudence, the total delay is calculated from the date the first information is laid: R. v. Allison, 2022 ONCA 329, at para. 41, citing R. v. Kalanj, (1989), 1 S.C.R. 1594, 70 C.R. (3d) 260; R. v. Rea, 2018 ONCJ 425, at paras. 14-16. This is true even in cases where subsequent informations are laid involving different co-accused persons, transactions, complainants, and/or charges: See Belcourt, at para. 68; Rea, at paras.14-16; R. v. Delves, 2022 ONCJ 141, at para.30; R. v. Mengistu, 2022 ONSC 3624, at para. 21; R. v. Brown, 2019 ONSC 6689, at para. 73. 
[47] In particular, fraud cases similar to the one at bar also calculate total delay from the date of the first information: R.v. Dhaliwal, 2020 ONCJ 600, at paras. 9-12; R. v. Lim, 2017 ONCJ 769, at para. 50.
The court examined other factors, including Covid, for which about six months was allowed as an exceptional circumference.  The meat of the matter, however, was the issue of case complexity that was discussed at para. nos. 73 through 100 where Justce Goodman concluded that the case did not rise to the level of a “particularly complex” case as referenced by the jurisprudence.  In particular, consider these passages:
[82] With respect, I am not persuaded by the Crown’s submissions. For example, the argument regarding multiplicity of issues as noted above (jurisdiction, identity, mens rea, party status, witness statements and similar fact) occurs routinely in many cases. A lengthy preliminary inquiry may be another indicator of complexity. However, multiple accused facing trial is no longer an issue and the trial time may now be overestimated given the resolution of accused or charges. Further, crimes alleged over a lengthy period of time or in multiple jurisdictions does not, per se, necessarily entail complexity. 
[97] I am persuaded that this case may have “acquired” some complexity. I say this on the basis from trial management difficulties following the decision to amalgamate three prosecutions from three disparate jurisdictions. Much like a case can simplify as it proceeds, a case can also acquire complexity over time. However, this was all orchestrated by the Crown. 
[98] Viewed qualitatively, the prosecution did not start out necessarily as a particularly complex case, but became so. There were co-accused who are no longer facing trial. The joining of three distinct prosecutions with numerous (over 50) and somewhat duplicative charges from three different jurisdictions into one omnibus prosecution was a decision made by the Crown. While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex “such that the delay is justified”: Jordan, at para. 77.
He wrapped it up with these remarks:
[104] This trial involves serious allegations of fraud perpetrated on numerous individuals and businesses over a prolonged period of time. Indeed, this case is far from what can be described as a “typical fraud” case. Nonetheless, for all of the aforementioned reasons, I am unable to conclude that this case is “particularly complex” as it has been interpreted by the leading appellate jurisprudence. In other words, it does not rise to the level of complexity that would justify a delay beyond the presumptive 30-month ceiling. The remaining delay of 34 months exceeds the Jordan guidelines for trial in the Superior Court and is presumptively unreasonable. 
[105] Therefore, the Application is granted.... 

Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.

He can be reached at:
20 Hughson Street South, Suite 612
Hamilton, Ontario
L8N 2A1