During the 20-plus years that I practiced family law, I noticed on many occasions that police officers didn’t have a clue about that area of the law. Clients would report to me that police had come to their homes during a domestic dispute and had issued instructions to one spouse or the other (or sometimes both)—sometimes wrongfully compelling one spouse to leave the home, or preventing a spouse from taking away some possession that belonged to him or her—with complete disregard to what the body of family law on the subject actually said.
It was so bad that eventually, I sent a letter to the police force in one of the municipalities served by my law office, offering to conduct a seminar on family law for its officers. I got no reply. I sent a follow-up letter. No reply.
Clearly, that police chief didn’t care enough about the errors his officers were making to want to educate them.
The problem of officers not knowing the law—or else wilfully breaching it—arose again when I was practicing in the field of constitutional law. A client’s farm was raided by a horde of police officers one day. They seized all the computers and cell phones of everyone present, even a relative visiting from Europe who clearly had no connection to the offence my client was being accused of (the horrendous crime of distributing unpasteurized milk). When the phones were ultimately returned, the visitor’s phone had been wiped clean of some videos he had taken.
That’s when I studied up on the mischief provisions of the Criminal Code. They actually contain a special clause (subsection 430(1.1)) prohibiting the destruction or alteration of computer data. They also prohibits anyone from obstructing, interrupting or interfering with the lawful use of or access to computer data. (Cell phones are small computers.)
The officers who had seized that visitor’s phone and erased the videos either didn’t know the law, or didn’t care if they broke it. They probably felt safe in the knowledge that the phone’s owner would soon be leaving Canada and would find it horribly inconvenient to try to prosecute from abroad.
This incident came to mind because I’ve been hearing lots of rumours that the police gathering in Ottawa have plans to make mass arrests of the protesters (truckers) there, and are planning to impose a cell phone blackout so that they can carry out their arrests without anyone live-streaming their actions to the world.
My reading of ss. 430(1.1) of the Code is that it would be illegal for police to impose a cell phone blackout like this. Why would they even want to if their arrests were going to be legal? It’s only because they’re well aware that the arrests they are planning to make are probably illegal in the first place (since they violate Charter rights all over the place) that they want to carrying them out away from the prying eyes of the world.
But based on my past experience, they should anticipate that if they are arrested, their cell phones will be confiscated, and the videos on them will have been erased before the phones are returned. This would of course be a Criminal Code offence on the part of the officers who did it, but based on what I’ve seen so far from Ottawa, they and their chief don’t seem to care.
These are, after all, the same police who came and took the fuel that had been donated to the truckers, and then watered it down before returning it.
Be forewarned.