Supreme Court of Canada Rules on Internet Users’ Expectation of Privacy

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Author: Erin Wolff

On Friday, June 13, 2014 the Supreme Court of Canada released a landmark privacy decision in R. v. Spencer, 2014 SCC 43. The court’s unanimous decision, written by Justice Cromwell, addresses the expectation of privacy with respect to the subscriber information associated with an Internet Protocol (IP) address and upholds the importance of anonymity as part of the protected right to privacy.

This case arose out of an investigation in which the Saskatoon Police – after identifying the IP address of a computer that someone had been using to access and store child pornography through an Internet file sharing program – submitted a request to Shaw Communications Inc. (the Internet Service Provider (ISP)), without a warrant or other judicial authorization, for the subscriber information associated with that IP address.

The request was made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA), which permits disclosure to a government institution that has requested the disclosure for the purpose of law enforcement and has stated its “lawful authority” for the request.

Shaw Communications complied with the request and the police were able to identify the accused as a result. He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available. The Court of Appeal subsequently upheld the conviction, but set aside the acquittal on the making available charge and ordered a new trial.

On appeal, the SCC had to determine whether there was a reasonable expectation of privacy in the circumstances of this case. Two relevant factors that the SCC considered in reaching its decision were the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.

The SCC found that there was an expectation of privacy in the subscriber information, and thus, a search for it requires a warrant:

In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

The SCC ultimately concluded that the conduct of the search in this case violated section 8 of the Charter of Rights and Freedoms, stating that:

Neither s. 487.014(1) of the Criminal Code, nor PIPEDA creates any police search and seizure powers. Section 487.014(1) is a declaratory provision that confirms the existing common law powers of police officers to make enquiries. PIPEDA is a statute whose purpose is to increase the protection of personal information. Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, the police do not gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information. The conduct of the search in this case therefore violated the Charter. Without the subscriber information obtained by the police, the warrant could not have been obtained. It follows that if that information is excluded from consideration as it must be because it was unconstitutionally obtained, there were not adequate grounds to sustain the issuance of the warrant and the search of the residence was therefore unlawful and violated the Charter.

However, the Court dismissed the appeal and allowed the conviction for possession of child pornography to stand, as it found that the police believed they were acting lawfully and that the exclusion of the evidence would bring the administration of justice into disrepute:

The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute. While the impact of the Charter infringing conduct on the Charter protected interests of the accused weighs in favour of excluding the evidence, the offences here are serious. Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences. Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute. The admission of the evidence is therefore upheld.