2016 QCCQ 1281, 2016 QCCQ 1281

Unofficial English Translation R. c. Lafond 2016 QCCQ 1281 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL LOCALITY OF LONGUEUIL “Criminal and Penal Division” No.: 505-01-108076-122 DATE: March 8, 2016 ______________________________________________________________________ THE HONOURABLE STÉPHANE GODRI, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

DOMINIQUE LAFOND Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] On June 12, 2012, officers from the police department of the agglomeration of Longueil carried out a search warrant at the home of the accused, Dominique Lafond. Several portable transceiver radios were seized, as well as a scanner, and several documents relating to the operation and use of these devices.

BACKGROUND [ 2 ] The accused is charged with three counts laid under different sections of the Criminal Code related to the possession of these devices. The prosecution argues that the accused could, with these devices, listen or surreptitiously intercept various communications made over radio waves. It also alleges that he obtained telecommunications services without payment of a fee for their use. [ 3 ] For his part, the accused argues that the prosecution failed to establish beyond a reasonable doubt that he knew that the devices at issue were capable of intercepting such communications.

He also alleges that some of the conversations that may have been intercepted by these devices are not private conversations within the meaning of the Criminal Code . Finally, he maintains that there is no evidence that he actually used the telecommunication services requiring the payment of certain fees. THE EVIDENCE [ 4 ] At trial, the investigator responsible for the file and two radio communication experts were heard. One of the expert witnesses works for the Sureté du Québec and the other for Industry Canada. [ 5 ] Furthermore, the various radios seized, as well as the scanner, were filed into the record.

Finally, photographs of the search and other documents were also filed into the record. [ 6 ] At this juncture, the Court believes it relevant to summarize the technical evidence heard in this case. The seized devices may be put into three categories. There is a digital LTR transceiver device, several analog transceiver radios and finally, an analog scanner that has undergone a specific modification with the addition of a homemade integrated circuit.

It is worth mentioning that none of the seized devices is capable of decoding encrypted communications. [ 7 ] A technical analysis of the radios establishes that they were tuned to various frequencies assigned, inter alia , to emergency services such as ambulance and police services and certain towing companies. The analysis also indicates that knowing the various frequencies is not enough, however, to allow the content of a conversation between parties to be intercepted without their knowledge. The different technologies used must be compatible.

[ 8 ] For example, some of the frequencies set in one of the analog devices targeted digital radio waves. Thus, anyone attempting to listen to conversations over these radio waves would be able to find out only that there was activity without being able to understand the actual words. There would be a sound when words were being transmitted, but nothing more. It would be impossible to know more than the fact that there was a conversation being held. [ 9 ] The evidence also reveals that all of the devices that had been programmed with frequencies connected to emergency services required a licence to be operated.

The evidence shows that to use this type of frequency, an application must be filed to obtain a licence to this end. Furthermore, the frequencies assigned to emergency services are kept confidential and are not accessible to the public at large. They are like confidential telephone numbers that are not published in the telephone book. It was also explained that [ translation ] “a licence entails the payment of fees for the issuance of said licence”.

Thus, every person will have to pay annual fees to maintain their licence. [ 10 ] The various analyses also show that aside from the scanner, none of the radios were modified. Overall, the devices are approved and certified in accordance with Canadian standards, the only exception being the scanner. Originally, it had also been approved and certified in accordance with Canadian standards, but an additional integrated circuit was added inside the device.

From the outside, there is nothing to indicate that it has been modified, except an additional port allowing it to be connected to a computer. [ 11 ] The Industry Canada expert explained that by connecting the device to a computer and installing software on that computer that can analyse the binary code intercepted by the scanner, access could be gained, for example, to pager type communications or communications sent on various frequencies programmed into the scanner. APPLICABLE LAW [ 12 ] The accused is facing three charges laid under three different provisions of the Criminal Code .

Because each of these charges requires proof of different constitutive elements, the Court will address each of them separately. [ 13 ] The first count is based on subsection 191(1), which states: 191

(1) Every one who possesses sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. S.C. (1985), c. C-46, s. 191; R.S. (1985), c. 27 (1st Supp.), s. 26; 2005 c. 10, s. 34 ; 2013, c. 8, s. 4 . [ 14 ] To help with the

interpretation of this provision, Parliament provided various

definitions under

section 183. Among them are the

definitions for “private communication” and “intercept”, which state: Private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it ; (Communication privée) … Intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; (Intercepter) [ 15 ] While recognizing that the definition of private communication does not apply to communications sent over unencrypted analog frequencies, the prosecution maintains that digital communications should nevertheless be considered to be included in this definition.

The prosecution also maintains that a person who detects a digital communication through an analog radio or scanner is intercepting a communication within the meaning of sections 183 and 191 of the Criminal Code . [ 16 ] In 2013, the Supreme Court of Canada considered the various

interpretations to be given to these two

definitions in R v. TELUS Communications Co .: [1] [36] The

interpretation of “intercept a private communication” must, therefore, focus on the acquisition of informational content and the individual’s expectation of privacy at the time the communication was made. In my view, to the extent that there may be any temporal element inherent in the technical meaning of intercept, it should not trump Parliament’s intention in

Part VI to protect an individual’s right to privacy in his or her communications. [37] The use of the word “intercept” implies that the private communication is acquired in the course of the communication process. In my view, the process encompasses all activities of the service provider which are required for, or incidental to, the provision of the communications service. Acquiring the substance of a private communication from a computer maintained by a telecommunications service provider would, as a result, be included in that process. … [43] An

interpretation of “intercept a private communication” that includes the investigative technique used by police in this case finds support in the statutory definition of “intercept” in s. 183. The definition includes the simple acquisition of a communication. It does not require the acquisition of the communication itself, rather, the acquisition of the “substance, meaning or purport” of the communication is sufficient. Moreover, this

interpretation is harmonious with the scheme and objectives of

Part VI, which is drafted broadly in order to regulate and control a wide variety of technological invasions of privacy. Finally, it strikes the appropriate balance between the serious invasion of privacy that results from the surreptitious acquisition of private communications and the evolving needs of effective law enforcement.

[ 17 ] Even when applying the broadest possible definition of “intercept” under

section 183, the Court cannot find that it includes the mere knowledge of the existence of the communication as suggested by the prosecution. Also, the Court does not believe it would be reasonable to argue that the police officers had a reasonable expectation of privacy when these communications were made, even through digital communications.

The experts from both the Sûreté du Québec and Industry Canada acknowledged that despite the fact that digital communications are more secure than analog communications, they do not have the same level of security as those that are encrypted. [ 18 ] The additional security of digital communications arises mostly from the control over licensing.

Once a frequency is known, however, anybody with a device in his or her possession capable of tuning into the digital frequency can hear or even become a party to the communications in question. [ 19 ] It is difficult for the Court to understand how it would be reasonable for police officers to think that the existence of a penal or financial consequence in the event of non-compliance with the issuance of a licence increases the privacy of the communication.

If that were the case, it would not be necessary for police officers to verify the speed at which cars are being driven on the road because the threat of a penal consequence would ensure compliance with the standard.

The fact that this technology is less easily accessible and more controlled does not make it reasonable to think that the communications initiated with this technology will not be intercepted by third parties. [ 20 ] Thus, the Court finds that the accused has not committed the offence under the first count with respect to the possession of various radios found in his home. [ 21 ] As for the scanner, the Court reaches the same conclusion, but for different reasons. [ 22 ] As stated above, the ability of the scanner to intercept pager communications and convert this data through a computer was clearly established by the evidence.

The accused’s knowledge that the scanner had this capability, however, was not. In fact, no computers with the necessary software, or any trace of this type of software, were found in the accused’s home. [ 23 ] There is nothing in the evidence to indicate, even circumstantially, that the accused knew that the scanner had been modified with the addition of the homemade integrated circuit. Furthermore, there is no evidence on how the different pager systems work.

Thus, the Court cannot assess whether it was reasonable for those who use this technology to consider their communications private. [ 24 ] Also, a close reading of

section 191 reveals the necessity of proving that the accused knew that the design of the devices made them primarily useful for secretly intercepting private communications. [ 25 ] In the Court’s view, because the radios were not modified, it cannot be argued that the “design ... renders it primarily useful for...”. The fact that a person could, with these devices, accidentally or on purpose, listen to conversations unbeknownst to the parties holding the conversation does not make their design primarily useful for this purpose.

It is a possibility arising from their design and the technology rather than the purpose of these devices. [ 26 ] The action of programming the known frequency of a police department or another frequency into a transceiver radio does not support a conclusion that the design of the device makes it primarily useful for the surreptitious interception of other communications.

If that were the case, anybody in possession of a radio transmitter or a scanner would be guilty of this offence since its design allows any frequency to be programmed into the device. [ 27 ] The Court believes that the same conclusions must apply to the second count. This

section also provides that the device must be designed or adapted primarily to commit an offence under

section 342.1 or 430 of the Criminal Code : • 342.2

(1) Everyone who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under

section 342.1 or 430 , under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to commit such an offence, is (

a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or (

b) guilty of an offence punishable on

summary conviction. (Emphasis added.) [ 28 ] A different conclusion might have been reached with respect to the scanner, because of its modification, had the evidence established beyond any reasonable doubt that the accused knew about the modification. It did not. [ 29 ] The third count is based on subsection 327(1), which states: • 327

(1) Everyone who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used for that purpose, is (

a) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or (

b) guilty of an offence punishable on

summary conviction. (Emphasis added.) [ 30 ] This provision also concerns a device designed or adapted primarily to use or obtain a telecommunications service without payment of a lawful charge. There is nothing in the evidence to ground a conclusion that the devices found at the accused’s home were

modified for the purpose of being used without paying the charges, even if, as the prosecution argued, the accused could tune into frequencies for which he did not have a licence. [ 31 ] Once again, if that were the case, anyone in possession of a transmitter radio would be in the same situation. Furthermore, the Court does not believe that programming a frequency for which a licence is required into a device corresponds to the definition or the notion of “adapted primarily for” under

section 327. [ 32 ] Court decisions concerning

section 327 suggest that this provision is principally intended for devices likely to circumvent jamming or encryption measures, which guarantee that a user will pay the amounts required for their use. In this case, there are no such similar control measures. There is nothing to prevent the possessor of a transmitter radio or scanner from entering a specific frequency. Therefore, no technology is required to circumvent this possibility. [ 33 ] In the Court’s view,

section 327 cannot be intended for situations where someone programs and uses a frequency that was not assigned to them by licence. That is not an adaptation. It is rather an inherent capacity related to the device’s basic design. CONCLUSION [ 34 ] The fact that the safety of police officers could be endangered because of the accused’s possession of the various devices seized in his home was argued with force. Despite the Court’s being sensitive to this situation, it does not justify that a different conclusion be reached on the counts laid against the accused.

The Criminal Code does not confer to conversations between police officers a status that is different from conversations between ordinary citizens. [ 35 ] The Court believes instead that it is up to the police to adapt to the reality of today’s legally available technologies and use the appropriate means to protect any conversations they deem sufficiently sensitive to be in need of such protection . FOR THESE REASONS, THE COURT: [ 36 ] ACQUITS the accused of the three charges laid against him. __________________________________ STÉPHANE GODRI, J.C.Q.

Mtre Jean-Pierre Gagnon Crown prosecutor Mtre Frédéric Beaulne For the accused