On June 13, 2014 the Supreme Court of Canada released its decision in R. v. Spencer 2014 SCC 43 addressing the expectation of privacy in the identification of an Internet Protocol (IP) address. In this case, the police had identified the IP address of a computer that someone was using to access and store child pornography through an Internet file sharing program. The police did not know who the IP address belonged to, but they went to the Internet Service Provider (ISP), without a warrant or other judicial authorization, to obtain the subscriber information associated with the address.
The request was made pursuant to s. 7(3) (c.1) (ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA), which provides that,
an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is,
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law
The ISP, in this case Shaw, complied with the request and the police were able to identify the accused. He was charged and convicted at trial of possession of child pornography. He was acquitted on a charge of making it available. The Court of Appeal upheld the conviction, set aside the acquittal on the making available charge and ordered a new trial.
On appeal, the SCC dismissed the appeal. It had to ask whether there is a reasonable expectation of privacy in the circumstances of this case. The two relevant factors that the Court looked at were the nature of the privacy interest at stake and the statutory and contractual framework governing the relationship between an ISP and its subscribers. The Court looked at both the statutory framework and the terms of the contract of service between Shaw and its subscribers and concluded that the obtaining of the information in question did violate the Charter however, the Court found that the conduct of the police would not bring the administration of justice into disrepute and declined to order the evidence obtained by warrant, as a result of the ISP information, excluded on the basis that its admission would bring the administration of justice into disrepute.
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.
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.