Apparently, the truth is stranger than fiction, even when it’s like something straight out of George Orwells Nineteen Eighty-Four: injectable GPS tracking devices for notorious criminals.
That’s what Williams Lake City Council members voted on this week – unanimously. With a population of roughly 14,000 people, the community is now grappling with serious, unrelenting criminal activity. The Canadian Federal government keeps track of the statistics with respect to crime in municipalities across the country, sourced from Statistics Canada Crime Severity Index. While no one was surprised to see Williams Lake make the list (it has for many,many years) there was new concern this time around when the city was ranked at the top of the Index. Concern escalated when this past Monday, surveillance captured 2 males stealing another males bicycle at gun point in broad daylight. The brazen nature of the crime set alarm bells sounding.
It has been reported that out of the community of roughly 14,000 people. Between 20-100 of them are known to police as being prolific offenders – that is, individuals who are frequently at odds with the law. On paper, Williams Lake RCMP have 13 local residents on their prolific offender list, 7 of whom are currently behind bars. The rest are being closely monitored.
City Councillor Scott Nelson was quoted saying “For the privacy of few who don’t even believe in law, we need to use the technology to the benefit of the society as a whole,” when defending the Council’s unanimous vote for injectable GPS trackers. Indeed, having a GPS device located on an individual who is a high-risk to re-offend would probably result in peace of mind for a community ravaged by crime – but it comes at a high cost to a society that is increasingly leery of police presence.
As it stands, there is no legal authority for the use of injectable GPS tracking. GPS monitoring for other Canadian offenders is tightly regulated and requires judicial authorization. Civil liberties lawyers have responded to the Williams Lake City Council by advising that there is little to no likelihood that such a system would ever be found to be constitutional.
For now, Williams Lake will have to rely on good old fashioned police work and vigilant, community minded residents to do their part in keeping the small northern town safe.
When a defence lawyer gets a new file that involves the search and seizure of evidence from their client, the first thing they will want to investigate is if the search was lawful. An unlawful search can often result in evidence being excluded from Trial. Laws surrounding search and seizure are ever-changing, but the fundamental rights laid out in our Canadian Charter of Rights and Freedoms are enduring. Section 8 of the Charter protects Canadians from unreasonable search and seizure, which means that police are often required to obtain a warrant (judicial authorization) before proceeding to collect any evidence they wish to use at Trial.
There have been several pivotal developments in this area of the law recently, one coming from the Court of Appeal. Rodney Fedan of Kamloops, B.C., lost the appeal of his dangerous driving causing death conviction after he argued that his Charter rights were violated when RCMP collected information from his truck’s “little black box” without a warrant. The little black box I am referring to is known as a Sensing Diagnostic Module (“SDM”); they are commonly installed by manufacturers in passenger vehicles. Their main purpose is to monitor the condition/deployment of the airbags, but they have become increasingly more intelligent over the past decade, and are coveted by accident re-constructionists for the data they record and store. Re-constructionists can download the data from the “little black box” and use it to develop insight into the nature of a motor vehicle accident. In Mr. Fedan’s case, the 5 seconds of data recorded by the SDM immediately preceding the crash (which is generally all they record) was all that was needed to prove that Mr. Fedan was travelling at approximately 106 km/hour when he veered off of the winding road he and his passengers. The ensuing accident resulted in the death of 22 year old Brittany Plotnikoff and 38 year old Ken Craigdallie.
Fedan argued that his reasonable expectation of privacy was breached when RCMP officers seized the data from his SDM without a warrant. Unfortunately for him, 3 B.C. Court of Appeal Judges disagreed when they held that the Supreme Court Judge was reasonable in allowing the material into evidence at Trial.
It is crucial to note that Mr. Fedan was not aware that the SDM was capable of downloading and storing data that would be useful to the RCMP in such an investigation. Since he had no knowledge of the data’s existence, he could have no reasonable expectation over its privacy. This is in stark contrast to the level of privacy a person would expect to have over the information stored on their computer or cellphone – warrants are generally required to seize and search these devices (unless searching them is considered to be incidental to arrest).
When the case was originally heard in October 2014, Mr. Fedan was sentenced to 3 years in jail and was banned for driving from 3 years. He was not convicted of impaired driving after the blood samples obtained were ruled to be inadmissible.
Impaired driving cases are complex, and are taken extremely serious by the police and the Courts. If you are facing charges related to drinking and driving, contact Jason and David Tarnow for a free consultation. Our office is conveniently located in central Richmond, easily accessible from anywhere in the lower mainland.