The Ontario Court of Appeal has, in R v Ward, 2012 ONCA 660, upheld the protocol between police and internet service providers (ISPs) under which the police request information about an ISP’s customer who is suspected of committing a child pornography offence, but without obtaining a warrant. While acknowledging that Canadian case law is a bit all over the map on the issue, the court concluded that there is no reasonable expectation of privacy on the part of the ISP’s customer; a police request for disclosure of the customer’s identity is therefore not an unreasonable search under the Charter.
The Sudbury police requested customer information from Bell Sympatico in order to identify the subscriber assigned to three internet protocol (IP) addresses which had accessed child pornography made available on a German website. Bell Sympatico complied. The subscriber, later accused of child pornography offences, challenged this process as an unreasonable search under s 8 of the Charter. Both the trial judge and the Court of Appeal stated that s 8 would be engaged only if the accused had a reasonable expectation of privacy in his account information. While anonymity is ‘to some degree at least’ a feature of internet activity that may enjoy constitutional protection, Ward’s expectation of privacy was objectively unreasonable. His contract with Bell Sympatico permitted disclosure to the police where there was alleged criminal misuse of the services, Bell Sympatico had a legitimate interest in making voluntary disclosure to assist in the investigation of alleged criminal activity, and Bell Sympatico was also under a legal duty under privacy legislation to disclose personal information to the police, if certain prerequisites were met.
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