White Collar Crime: Investigations
White Collar Crime is often used to describe a myriad of offences that range from Fraud Over $5,000 to unauthorized access of a computer and mischief in data. The Ontario government recently created the Serious Fraud Office (“SFO”), which focuses on investigating and prosecuting complex financial crimes. The SFO was created following a series of high-profile acquittals in Ontario and a confidential report from former Court of Appeal Justice Stephen Goudge in 2015.
The result is that Ontario now has a specialized investigative agency to focus on complex financial crimes. Investigating complex financial crimes requires agencies to embrace technology and, yes, apps. Technology has changed both the nature of criminal activity and investigations.
There is no doubt that technology and apps have changed our lives. You can control your thermostat while away on vacation or be notified that someone is at your front door and speak to them remotely. The devices and apps we use log data, which can sometimes create digital evidence of a crime or suspected offence.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable searches and seizures, but what exactly that means in a digital age is subject to constant change and interpretation. For example, the Supreme Court of Canada has stated that text messages sent or received can, in some circumstances, attract a reasonable expectation of privacy and therefore engage the Charter. However, it may be less clear whether that same expectation of privacy or Charter protection would apply to a video recorded by a Ring doorbell.
Searches of computers, cell phones or other electronic devices are fundamentally different from traditional searches. The amount of data that devices and apps can store is vast, unlike a physical space, which is limited to objects that can be observed. It is illegal to destroy evidence. However, consider the difference between physical and electronic items. Real evidence, if destroyed, is likely lost forever. Evidence of the destruction may be obtained, but the object itself is unlikely to be reconstituted. On the other hand, electronic data, if deleted, can often be recovered by investigators and restored to its original state.
For that reason, investigators use special software and apps to recover data or analyze data from a locked or encrypted device. Searching electronic devices or apps can uncover evidence of a crime, no evidence, or evidence of another crime entirely. Some software used by investigators, such as Cellebrite Data Extraction, can result in push-button forensics where an extraction report is generated after plugging in a cellphone and SIM card.
If you are the subject of an investigation or have been charged with any white collar crime, or offence involving computers, apps, or data, you should speak with a lawyer who can protect your rights and give you strategic advice. The advance of technology and pervasiveness of data requires that all parties in the justice system – lawyers included – understand your rights and how searches and seizures are conducted electronically. The lawyers at Damien Frost & Associates LLP have both prosecuted and defended complex white collar crimes involving searches and seizures of electronic data. Contact our office today to schedule a free consultation to discuss how we can best protect your rights.