Expectation of privacy
In an odd decision out of Canada, a provincial level Supreme Court has ruled that a violent offender gambling at a public casino has an expectation of privacy when using his cellular phone to text despite the fact that gamblers are notified of being under surveillance when entering casinos.
The decision may undermine the ability of casinos and law enforcement to detect and prevent not just financial crimes but serious non-financial crimes, and their ability to comply with gambling legislation and anti-money laundering and counter-terrorist financing laws when gamblers (including violent offenders) are on the premises.
The Court also held, as an aside, that an unsent text on a cellular phone is a communication because it is about to be sent and about to enter the transmission stream, effectively opening the door to the argument that an unsent communication is now a communication in Canada. That determination has almost unimaginable repercussions in criminal law, for example at the extreme end, it appears to mean that a person texting a death threat (let’s say) that they never send may be nonetheless convicted of communicating that threat because the text was on their phone “about to be sent” and enter the transmission stream. In other words, a draft text or email that is never sent is sufficient to establish a factual communication.
Integrity of gaming
Casinos in Canada are conducted and managed by the government and they are required, pursuant to the Gaming Control Act, to ensure the integrity of all aspects of gambling. As part of the requirement to preserve integrity, casinos must take action to monitor gamblers on the premises 24/7 to ensure they are not engaging in criminal conduct (such as loan sharking) and to detect and report suspected money laundering and terrorist financing offenses.
In addition to ensuring the integrity of the gaming industry, casinos have a duty to ensure the safety of their employees and of gamblers. One of the ways in which they do this is by the use of video surveillance.
Since the TV series CSI and a host of casino-related movies, the whole world knows that casinos use PTZ cameras that can capture minute details of activities from the ceilings 30 feet above. The Gaming Control Act and gaming policy require that casinos monitor and remove gang members and other violent offenders from gaming premises. Often, the PTZ usage is what alerts them to the fact that a person is on site that will affect the integrity of gaming. PTZs are now used for many other businesses from retail stores, infrastructure and banks.
The judgment is not particularly clear, partially because the Judge said he would not take a technical approach to the law in some of his analysis, but the facts of the case seem to be as follows:
In June 2012, Dean Michael Wiwchar was arrested and charged with the first-degree murder of John Raposo in Toronto. Six months earlier, a man was murdered at the Wall Centre Hotel in Vancouver and police apparently suspected Wiwchar of having committed, or having been involved in, that murder. In the course of their investigation, the Vancouver Police located 16 guns and ammunition at two of Wiwchar’s apartments in Greater Vancouver. After the arms were located in the ostensible possession of Wiwchar, the police began surveilling him.
In March 2012, Wiwchar gambled at the Edgewater Casino in Vancouver. The police followed him into the casino. While on the premises, he used his cellular phone to send and receive text messages. The police went to the casino surveillance room to monitor Wiwchar on PTZ cameras. They directed casino surveillance personnel to zoom in to read Wiwchar’s texts and to screen capture the messages. In particular, they obtained screen shots of texts that Wiwchar was composing, or had composed, but had not yet sent. The police did not have a warrant.
Four days later, the police obtained the video footage and screen captures of the incident above involving Wiwchar from the Edgewater Casino with a court order.
Wiwchar was subsequently charged with arms-related offenses in British Columbia and murder-related charges in Ontario. According to his parole recordÂ he,Â inter alia,Â is a violent offender; threatened to kill correctional officers; once deliberately flooded his prison cell; slashed a man in a home “from his ear to his lip”; beat victims he was robbing with a baseball bat; and stabbed a person.
After he was charged in British Columbia, Wiwchar’s lawyer moved to have the casino text messages excluded as evidence on the basis that they were illegally obtained by violating Wiwchar’sÂ right not to be subject to an unreasonable search and seizure under Â§8 of the Charter of Rights and Freedoms. His lawyer argued that Wiwchar had a reasonable expectation of privacy in the casino vis a vis the content of his text messages.
The Crown argued that no one can have a reasonable expectation of privacy in a casino and further, as we all know, the texts were not private because anyone sitting beside us can see and read our texts when they arrive if one’s cellular phone screen is visible and watch as you compose texts. Â Wiwchar’s texting was obviously fairly visible because the surveillance staff were able to zoom in to read the messages for several hours. A PTZ camera does not have x-ray capabilities and cannot record anything other than objects and people that are in plain and public view.
The Court said that based on the evidence presented to it, the primary purpose of video surveillance at casinos is to detect cheating. That is not completely inaccurate and minimizes the role and purpose of video surveillance. The primary purpose of video surveillance at casinos conducted and managed by government agencies, as mentioned earlier, is to ensure the integrity of the gambling sector and ensure the safety of persons at casinos as required by the Gaming Control Act, including to detect and report financial and other crimes as required pursuant to theÂ Proceeds of Crime (Money Laundering) and Terrorist Financing Act, Â§86 of the Gaming Control Act,Â and pursuant to several sanctions laws in effect in Canada.
According to the judgment, the Court appears not to have considered whether the alleged infringement was justifiable under Â§1 of the Charter of Rights and Freedoms, and as a result, that whole requisite analysis is absent. The Court also appears not to have considered the Gaming Control ActÂ as the basis for authority to undertake video surveillance.
A Communication now includes texts not sent
Most oddly, it took the position that viewing a violent offender’s texts using PTZ cameras at a casino is an “interception” of a communication. With respect to solely the interception issue, PTZ cameras at casinos are no different than similar passive cameras at street intersections, toll bridges, or shopping centres that record license plates or other activities that are used as evidence. Â If the latter are not illegal interceptions, it’s hard to see how the former is just because its in a casino. All that a PTZ camera does is zoom in to an object or a person in a pubic place for surveillance or a picture to record that which is in plain and public sight.
The Court held that a PTZ screen capture of a composed draft text chilling on a cellular phone before it is sent to the intended recipient (before you push the send button) is an interception of a communication because it wasÂ acquired in the course of the communication process, which it held meant a text that was “about to be sent” and enter the transmission stream.
This seems to mean that a draft email, text or social media post that is composed on a device or a computer and “about to be sent” is now a communication for the purposes of the Criminal CodeÂ irrespective of whether it is in fact sent.Â In other words, a non-communication in a text message format is now a communication. Does this mean a person can be convicted of an illegal communication in a text message that is never communicated? In Canada, notwithstanding the Charter of Rights and Freedoms and notwithstanding that such a communication is never actually communicated, it would arguably appear to be the case.
In the result, the Court held that aÂ violent offender in a public place does not abandon his right to privacy with respect to his text messages and that theÂ police violated Wiwchar’s expectation of privacy by reading the text messages on the PTZ cameras. That evidence was ordered excluded from Wiwchar’s trial.