RCMP Takes Heat for Failing to Probe Wire-Tapping Allegations

By: Devin Johnston · October 12, 2009 · Filed Under Criminal Law, Politics · Add Comment

Last November, MP John Duncan (CON – Vancouver Island North) was accused by the NDP of illegal wire-tapping, contrary to the Criminal Code of Canada, s. 184(1). New Democrats alleged that Duncan, whose parliamentary email address is similar to that of Linda Duncan (NDP – Edmonton-Strathcona), was inadvertently sent an email containing passwords for an NDP caucus conference call. The Conservative Party then released an audio recording of the call to the media. John Duncan has not made any public statements about the incident and no charges were laid.

Following a complaint by the NDP, the RCMP is now under investigation by the Commission for Public Complaints against the Royal Canadian Mounted Police. The New Democrats allege that the RCMP failed to perform an adequate investigation into the incident, and claim that the police did not even interview John Duncan to assess the situation.

For what it’s worth, the relevant portions of the Criminal Code read as follows:

Interception

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The word “intercept” is defined in s. 183:

“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;

Some commentators have argued that because the email was sent to a Conservative MP, there should be no legal consequence attached to using the information in that email to record the conference call. However, the NDP argues that the conference call was still “a private communication” within the meaning of s. 184:

“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; [emphasis added]

The word “intended” in the definition of a private communication is crucial. It suggests that the originator has reasonable expectation against any person that the originator did not intend to make a party to the private communication, notwithstanding that the originator may have inadvertently allowed such a person to access to the communication. It would seem pretty clear from the circumstances that the NDP did not intend for an MP from a rival political party to participate in their caucus strategy call (particularly in light of the political situation at the time).

Legally, then, the analysis for the allegations raised by the NDP against John Duncan would be along the following lines (I have used “alleged interceptor” in place of “accused” since Mr. Duncan has not been accused by the Crown of any crime):

Was the NDP’s conference call “a private communication” within the meaning of s. 184?
1. Was it oral communication or telecommunication?
2. Was it made by an originator who is in Canada or intended by the originator to be received by a person who is in Canada?
3. Was it made under circumstances in which it was 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?
  1. Is the alleged interceptor a person intended by the originator to receive the communication?
  2. Do the circumstances, including the inadvertent email sent to the alleged interceptor, give rise to a reasonable expectation that the communication would not be intercepted by the alleged interceptor?
Was the communication willfully intercepted by the alleged interceptor?
1. Did the alleged interceptor listen to, record or acquire the communication or the substance, meaning or purport thereof?
2. If so, did the alleged interceptor do so wilfully?

An interesting legal issue that follows from the above is content of the mens rea of the offence. The accused must “willfully” intercept a private communication in order to be convicted. The definition of “a private communication” includes a component of reasonableness (specifically, the reasonableness of the originator’s expectation that the communication will not be intercepted). So, does the mens rea consist of wilfully doing something that is objectively unreasonable? Or must the accused know that her interception is unreasonable in order to be convicted? I would argue for the former, given that the accused’s subjective beliefs about the reasonableness of intercepting another’s communication could vary wildly what is objectively reasonable (for example, someone who suffers from paranoia might consider it reasonable to tape her neighbour’s phone calls out of an unfounded fear for her own safety, yet this usually is not objectively reasonable).

Notwithstanding the legal complexities that would undoubtedly arise if charges were laid in connection with the incident I’ve described, there is, in my view, at least enough substance to the NDP’s allegations that they should be taken seriously and subjected to a proper investigation. Given that this incident played a major role the constitutional crisis of 2008, it would argue that this is a matter of national importance and that it should be treated accordingly by the RCMP.

Post tags: Conservative Party, John Duncan, New Democratic Party, wire-tapping

Social Media at Federal NDP Convention 2009

By: Devin Johnston · August 15, 2009 · Filed Under Politics · 3 Comments

I am currently in Halifax, Nova Scotia where I am attending the biennial federal convention of the New Democratic Party as a delegate for the Saint Boniface Riding Association. Our party’s last convention was in 2006 at a time when political blogs were just beginning to take off and Twitter was in its infancy. Today, party activists, journalists, and other observers are live-twittering policy panels, sharing photos through social media, and blogging every aspect of the convention. In this post, I want to explore some of the more interesting social media stories of the convention.

Democrats Live, Twitter, and Flickr: By the Numbers

I was one of a small handful of party activists who took this convention as an opportunity to promote social media in the party. To that end, we build a social media aggregator called “Democrats Live” (the name was in anticipation of a proposal to drop the “New” from “New Democratic Party”). The site mashes up tweets, blog posts, videos, and photos from social media sites to serve as a one-stop shop for online coverage of the convention. As of writing (about 1PM Atlantic), the site has received more than 10,000 hits from more than 1,000 unique visitors. Despite some issues with abuse of the rating system (which has now been disabled), the site has been working smoothly.

By far the most active social medium at this convention is Twitter. As of writing, the site has pulled together 1,254 tweets from 252 twits. This includes convention delegates, journos, and several observers watching the action unfold live on CPAC.

Dozens of photos from the convention have been posted to the HFX09 Group on Flickr, including shots of the keynote speakers, policy debates, MPs, and social events (incidentally, New Democrats know how to throw a hell of a party).

Video content has been slower in coming, which is as expected. I have a hunch that some delegates will be posting their videos only after the convention has ended due to the limited time available to edit and process video content. Personally, my goal of shooting video at convention has fallen by the wayside as I’ve been busy participating in the convention.

Dana Larsen Controversy

The biggest story in the social sphere has been the controversial decision by NDP national director Brad Lavigne to oust BC marijuana legalization activist Dana Larsen. On two occasions, Larsen posted messages on the left-wing discussion forums at rabble.ca indicating that he would subsidize travel and accomodations for those willing to support some of his drug policy motions. The party has taken the position that this constitutes a form of vote buying that is counter to the democratic spirit of the democracy.

Larsen and his supporters have been protesting outside the convention centre and making noise through social and traditional media. In particular, nearly half of the Twitter noise on Friday related to the Larsen controversy, both pro-Larsen and pro-party.

From my point of view, the most interesting dimension of this story is the party’s lack of understanding of social media in the whole controversy. As New Democrat activists take to emerging media to voice their concerns, the party is unable to control the story in a way that used to be possible in the days before Twitter. The party’s handling of the situation has actually created a platform for Larsen to promote his policies that he would not have had if the party had attempted to resolve the issue more amicably.

The bottom line here is that the party can no longer expect to do message control to the same extent that it could just three years ago at the last federal convention in Quebec City.

Where are the Bloggers?

While the activity on Twitter has been extremely promising , I have been somewhat surprised at the lack of convention coverage in the blogosphere. While a handful of bloggers such as Cameron Holmstrom, Northern BC Dipper, and Accidental Deliberations have been dutifully reporting on the debates and surrounding stories, other high profile New Democrat bloggers have been silent thus far. I think that there are a few reasons for this. Some bloggers were not able to attend this convention while others chose to travel light and leave their laptops at home. Facilities for blogging are limited at the convention centre; although there is wireless access, there aren’t a lot of great spaces for sitting and writing. Those on Blackberries (is that the proper pluralization?) have informed me that reception is sub-par.

Perhaps we will see more activity as the convention winds down and delegates have a bit more time to take a break and write their thoughts out online.

Tweet Up

On a final note, I am delighted that there will be a “Tweet Up” as part of tonight’s festivities. As one of the co-organizers of the event, I’m really hoping to see a large turnout of social media activists and party brass. The event is being held at the Carleton Restaurant and Pub, 1685 Argyle St. Several caucus members have already confirmed their attendance.

Post tags: New Democratic Party, Social media

Federal Election Strategic Voting Tool

By: Lawrence Gridin · October 3, 2008 · Filed Under Politics · 3 Comments

With the federal election just two weeks away, many are still scrambling to decide which name they should tick off on the ballot.

A friend of mine turned me on to an interesting Google Maps mashup which allows you to enter your postal code and see an estimation of the latest poll results for your riding.

The tool is designed with strategic voting in mind.

It is a pro-environment leaning website, and the goal of the authors is to see the Liberals, NDP, Bloc, and Greens win the most seats in the house of commons. Therefore, the website makes recommendations about which of these three parties you should strategically vote for in a particular riding to shut the Conservatives out of a seat.

However, even if you are a Conservative voter, you may still be interested to see how your candidate is doing in the latest polls.

I highly recommend checking it out.

The website is Vote For Environment / Voter Pour l’Environnement.