The Supreme Court of Canada recently released its decision in the landmark case of R. v. Spencer, in which it found that a police request to an Internet service provider for subscriber information constituted a search under the Charter of Rights and Freedoms, and that Internet users have a reasonable expectation of anonymity in their online activities.

Background

In Spencer, police identified the IP address of a computer that an individual had used to access and store child pornography through a file-sharing program. The person had downloaded the offending material into a folder that was accessible to other users using the same program.

Without prior judicial authorization, the police made a request to the ISP for subscriber information, pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA), which allows for such disclosure where requested for the investigation of a criminal offense. The ISP provided the police with the information, which allowed them to obtain a warrant to search the accused’s residence. The accused was subsequently charged with possession of child pornography and with making it available over the Internet.

At trial, the accused claimed that the police request to the ISP was unconstitutional and infringed his right under section 8 of the Charter to be free from “unreasonable search or seizure.” The accused was convicted of the possession count but acquitted on the count of making the content available online, as the judge found that the accused was not aware that his folder had been accessible to other Internet users. The Court of Appeal upheld the conviction for the possession count, but dismissed the acquittal on the making available count, finding that the trial judge had erred in requiring proof that the accused had committed positive acts that facilitated the distribution of the pornography. The case was subsequently appealed to the Supreme Court.

The request for subscriber information is a search

The first question that the Supreme Court examined was whether the police request to the ISP represented an unreasonable search that violated the Charter. According to the Supreme Court, this would depend on whether the accused had a reasonable expectation of privacy in the information that the ISP had disclosed to the police.

In considering the question, the Supreme Court conducted a section 8 Charter analysis, which considers the “totality of circumstances” and weighs interrelated factors that can be classified into four main categories: (i) the subject matter of the alleged search; (ii) the claimant’s interest in the subject matter; (iii) the claimant’s subjective expectation of privacy in the subject matter; and (iv) whether this subjective expectation of privacy was objectively reasonable.

The Supreme Court dealt quickly with the second and third points above, finding that the defendant had a clear interest in the subject matter of the search and that he also had a subjective expectation. Thus, the case ultimately turned on the subject matter of the search and whether the accused’s subjective expectation of privacy was reasonable.

Subject matter of a search

The Supreme Court stated that to determine the subject matter of a search, courts should examine the nature of the information sought and also other details the information may provide. The Supreme Court cited the approach used by Justice Doherty in R v. Ward, which held that courts must not do this “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action.”

Thus, the Supreme Court ultimately characterized the subject matter of the search as more than just a name and address. Rather, the subject matter was “the identity of an Internet subscriber which corresponded to particular Internet usage.”

Reasonableness of subjective expectation of privacy

In considering the reasonableness of the accused’s expectation of privacy, the Supreme Court considered the nature of the privacy interest at stake as well as the statutory and contractual framework governing the ISP’s disclosure of subscriber information.

The nature of the privacy interest at stake: Informational privacy

The Supreme Court held that the assessment of the nature of the privacy interest depended on the “privacy of the area or thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought.” It held that in this situation, the concern was primarily with informational privacy and whether individuals have a privacy interest in subscriber information with regards to computers that they use in their homes for personal reasons.

The Supreme Court also emphasized the importance of anonymity as a form of informational privacy in the context of Internet usage, stating that anonymity may be “the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure.” By remaining anonymous, users can ensure that their online activities largely remain private.

As such, it was found that the police request for subscriber information that corresponded to “specifically observed, anonymous Internet activity” engaged a “high level” of informational privacy.

Statutory and contractual framework

Upon examining the contractual and regulatory frameworks, the Supreme Court held that the relevant provisions provided little insight to evaluate the reasonableness of the accused’s expectation of privacy.

The Supreme Court also considered 7(3)(c.1)(ii) of the PIPEDA, which “allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information.” It found that it cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy since the appropriate reading of the provision itself depends on whether a reasonable expectation of privacy exists. Additionally, the Supreme Court held that it would be reasonable for an individual to assume that a request by police would not create an obligation to disclose personal information or override PIPEDA’s general prohibition on the disclosure of personal information without consent.

The Supreme Court further clarified that section 5(3) of PIPEDA, which states that “[a]n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances”, does not allow for a departure from the “lawful authority” requirement. It was found that while the police could request the information from the ISP, they lacked authority to compel compliance with that request.

The Supreme Court thus ultimately concluded that the request by police to the ISP for subscriber information constituted a search, as there was a reasonable expectation of privacy in the subscriber information.

The evidence should not be excluded

The Supreme Court also considered whether the search of the residence was lawful and disagreed with the Court of Appeal’s finding that any search was lawful due to the combined effect of relevant provisions of the Criminal Code and PIPEDA. The Supreme Court held that “lawful authority” encompasses the power of the police to conduct warrantless searches “under exigent circumstances or where authorized by a reasonable law.” It held that subscriber information used to support the issuance of the search warrant was not obtained constitutionally. It concluded that the search of the residence was unlawful given that there were insufficient reasons to sustain the issuance of the warrant and that there were also no exigent circumstances or authority by a reasonable law.

The Supreme Court also considered whether the evidence, which was obtained in an unlawful manner, should be excluded. In making this determination, the Supreme Court considered whether the admission of the evidence would bring the administration of justice into disrepute. The Court applied the test for s. 24(2) of the Charter as set out at paragraph 71 in R. v. Grant, which holds that the court must “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct . . . (2) the impact of the breach on the Charter-protected interests of the accused . . . and (3) society’s interest in the adjudication of the case on its merits.” The Supreme Court found that the purpose of the police’s actions were to pursue an important law enforcement purpose. While the impact of the breach on the accused was serious, it held that society would have a strong interest in the adjudication of the case due to the seriousness in the offense. Therefore, the Court decided that the evidence should not be excluded.

Wilful blindness can constitute the fault element of an offense

The Supreme Court agreed with the Court of Appeal that the trial judge had failed to consider whether the accused had been wilfully blind to the fact that his shared folder had allowed the pornography to be accessible to others. The Supreme Court affirmed the order for a new trial for the count of making available child pornography over the Internet contrary to s. 163.1(3) of the Criminal Code. It held that the offense does not require some positive act to enable the availability of the material, as it is committed once the individual makes pornography available to others.

The Supreme Court dismissed the appeal, affirmed the conviction on the possession charge and upheld the Court of Appeal’s order for a new trial on the “making available” charge.