On June 13, 2014, the Supreme Court of Canada released its decision in R. v. Spencer, 2014 SCC 43, yet another case about the limits of police search powers and Canadians’ privacy rights in the Internet age. Perhaps the making of a “trilogy” of cases involving the search of computer files for evidence of crime, the Spencer decision builds on the Court’s analysis in R. v Morelli, 2010 SCC 8 and R. v. Cole, 2012 SCC 53. Justice Cromwell writing for a unanimous Court outlines a very robust conception of privacy interests online that will no doubt affect certain police investigation practices conducted without prior judicial authorization. This decision will surely impact the practices of Internet Service Providers in similar situations, and may also impact on the customer privacy policies of Canada’s telecoms who are routinely asked by the police and security agencies for basic customer information.

Peer-to-peer file sharing

The case arose from Criminal Code charges against the Appellant for possession and distribution of illegal images obtained through an Internet file-sharing program. This free peer-to-peer system was commonly used to download music and movies from other users’ computer files but could also be used to download illegal images.

The Saskatoon police were able to search the Internet for anyone sharing illegal images and could access shared folders to discover computer activity of concern but, without the cooperation of the Internet Service Provider (ISP), the police could not match the IP addresses of interest with a specific computer location and owner. To obtain this missing information, police investigators made a written “law enforcement request” to Shaw for basic subscriber information, i.e. the name, address and telephone number of the account holder of the Internet service using the IP address at the particular date and time.

This request indicated that the police were investigating an offence under the Criminal Code pertaining to illegal images and the Internet and purported to be made under the authority of s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA) but without any production order (the equivalent of a search warrant). Shaw complied with the request which enabled the police to then obtain a search warrant to search the owner’s home (his sister’s where the Appellant lived) and seize and search his computer.

At trial the Appellant sought to exclude the evidence found on his computer on the basis that his s. 8 Charter right to be free from unreasonable search and seizure had been infringed. The trial judge dismissed the Charter defence and convicted the Appellant for possession of illegal images. The Court of Appeal upheld this conviction on the basis that the request for voluntary disclosure by the ISP did not constitute a “search”. The Appellant was acquitted at trial on the related charge of “making available” but the Court of Appeal set aside the acquittal and ordered a new trial on the issue of “willful blindness” in the test for mens rea.

Is this a search requiring a warrant?

Justice Cromwell answered these four questions on appeal to the Supreme Court:

  1. Did the police obtaining the subscriber information matching the IP address from the ISP constitute a search? Yes.
  2. If so, was the search authorized by law? No.
  3. If not, should the evidence obtained as a result be excluded? No.
  4. Did the trial judge err with respect to the fault element of the “making available” offence?   Yes, the judge did err and the Court of Appeal’s order for a new trial was upheld.

While criminal defence lawyers will be interested in (and likely disappointed by) Justice Cromwell’s decision not to exclude the evidence as the appropriate remedy for the s. 8 breach, the broader impact of this decision rests in the Court’s analysis of why the Appellant had a “reasonable expectation of privacy” in the information provided to the police by Shaw without a warrant.

Is there a reasonable expectation of privacy?

Cromwell J. states:

[15] This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society….

[18] The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. However, this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive….Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”….

He concludes re factors (2) and (3) above that the Appellant had a direct interest in the subject matter and had a subjective expectation of privacy in the computer files. These are common sense inferences given the nature of the sensitive information.

Thus the main factors in dispute turned on (1) the subject matter of the search and (4) whether Mr. Spencer’s subjective expectation of privacy was reasonable. Relevant here are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.

What is the subject matter of the search?

In the Court of Appeal, Justice Ottenbreit characterized the subject matter sought by the police narrowly: merely establishing the identity of the contractual user of the IP address. The fact that this information might eventually reveal a good deal about the activity of identifiable individuals on the Internet was, for him, “neither here nor there”….whereas Justice Cromwell saw the potential of that information to reveal intimate details of the lifestyle and personal choices of the individual reflected in his monitored Internet activity.

Is the subjective expectation of privacy reasonable?

Justice Cromwell then underlined that it was mainly informational privacy engaged by the state conduct in this case, putting at risk (a) confidentiality,  (b) control of the use of intimate information about oneself, and, (c) anonymity online. He emphasized that the nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. Rather it depends on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought.

He added that while there is an element of territorial privacy, in this context, the location where the activity occurs is secondary to the nature of the activity itself. As he observes, Internet users do not expect their online anonymity to cease when they access the Internet outside their homes, via smartphones, or portable devices. Therefore, the fact that a home was involved ( a key factor in the Morelli decision) is not a controlling factor but is nonetheless part of the totality of the circumstances.

Intervener perspectives on the balance between privacy and police investigation

Intervening in the appeal were the Attorneys General for Ontario and Alberta, the federal Director of Public Prosecutions, the Privacy Commissioner of Canada, the Canadian Civil Liberties Association and the Criminal Lawyers’ Association of Ontario.

Justice Cromwell endorsed the submission of the Canadian Civil Liberties Association that, “maintaining anonymity can be integral to ensuring privacy” and he recognized that anonymity is particularly important in the context of the Internet which has exponentially increased both the quality and quantity of information that is stored about Internet users. He states that “The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous — by guarding the link between the information and the identity of the person to whom it relates — the user can in large measure be assured that the activity remains private….”

On the other hand, the Director of Public Prosecutions raised the concern that recognizing a right to online anonymity would carve out a crime-friendly Internet landscape by impeding the effective investigation and prosecution of online crime. Justice Cromwell though expressed the view that the police had ample information to obtain a production order requiring Shaw to release the subscriber information corresponding to the IP address they had obtained. The anonymous Internet activity of the Appellant engages a high level of informational privacy and the police ought to have obtained prior judicial authorization to obtain the subscriber information from Shaw.

No consent or lawful authority

As in the lower courts, Justice Cromwell considered whether Shaw’s customer (the account holder who was the sister of the Appellant, and others such as the Appellant using the Shaw internet service in the home) had consented to the disclosure of personal information, but he found the contractual provisions to be confusing and equivocal in terms of their impact on a user’s reasonable expectation of privacy in relation to police initiated requests for subscriber information. He found the statutory framework provided by PIPEDA as “not much more illuminating”.

In Justice Cromwell’s view, nothing excused the clear requirement that a requesting government institution possess “lawful authority”. As for an ISP’s legitimate interest in preventing crimes committed through its services, he drew an important distinction between an ISP deciding itself to report this activity to the police and the case at bar where the disclosure of the subscriber information arose out of the request letter sent by the police to Shaw.

The Crown bears the burden of rebutting the presumption that a warrantless search, such as the one that occurred in this case, is presumptively unreasonable. A search will be reasonable if: (a) it was authorized by law; (b) the law itself was reasonable; and (c) the search was carried out in a reasonable manner. Here, the Crown relied upon on the combined effect of s. 487.014  of the Criminal Code and s. 7(3) (c.1)(ii) of PIPEDA as the claimed basis for police search and seizure powers.

Section 487.014(1) of the Criminal Code  provides that a peace officer does not need a production order  “to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing”. PIPEDA  prohibits disclosure of the information unless the requirements of the law enforcement provision are met, including that the government institution discloses a lawful authority to obtain, not simply to ask for the information: s. 7(3)(c.1)(ii). However, Justice Cromwell states that on the Crown’s reading of these provisions, PIPEDA’s protections become virtually meaningless in the face of a police request for personal information: the “lawful authority” is a simple request without power to compel and, because there was a simple request, the institution is no longer prohibited by law from disclosing the information.

He wrote that “lawful authority” in s. 7(3)(c.1)(ii) of PIPEDA  must be contrasted with s. 7(3) (c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3)(c.1)(ii) must mean something other than a “subpoena or [search] warrant”. “Lawful authority” may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy, or to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law.  Justice Cromwell agreed with the Privacy Commissioner of Canada’s submission, as intervener, that “lawful authority” must be interpreted to mean requiring more than a bare request by law enforcement and concluded that neither s. 487.014(1) of the Code, nor PIPEDA, creates any new police search and seizure powers.

Telecom customer privacy policies

Early indications are that Canada’s major telecoms will no longer routinely disclose basic customer information to police in similar circumstances without a warrant.

In response to the Supreme Court’s ruling and increasing demands from subscribers for stronger privacy protection, The Canadian Press reports that Rogers will require a warrant to get basic subscriber information except in life-threatening emergencies. To assist the police in applying for a warrant in the correct jurisdiction, Rogers will disclose only in which city the customer having the IP address of interest resides. Telus has announced a similar tightening of its customer privacy policies and Bell Canada has likely done so also.

Supreme Court next to rule on police searches of cell-phones in Fearon v. HMQ

The Supreme Court heard the Fearon appeal on May 23, 2014 and received submissions from the accused, the Crown, and 9 interveners on the issue of whether the traditional framework for a police ‘search incident to arrest’  requires updating in the digital-age of increasingly smart cell-phones.

Prior to arrest the police have no power to conduct a warrantless search of a cell-phone. Traditionally though, upon arrest, the police can lawfully search without a warrant any receptacles, like a bag, purse or briefcase, found on the person so long as the officer has reasonable grounds to believe that such a search may result in evidence of the offence of arrest. 

In Fearon, the Crown argued at trial that a cell-phone was no different than any other receptacle-like item and  the trial judge agreed that both the cell-phone search conducted at the arrest site and the second search at the station were lawful searches incident to arrest. The Ontario Court of Appeal upheld this decision while acknowledging that cell-phones potentially had a heightened s. 8 privacy interest, like computers, because of the quality of personal information stored in them.

The Fearon decision is expected by the end of 2014 and should provide much needed guidance on the limits of such searches and the “exigent circumstances exception”,  perhaps drawing a line between the seizure but not search of cell-phones pending a judicial warrant so that evidence is preserved without unauthorized breaches of privacy rights.

At the Canadian Bar Association Annual Conference in St. John’s in mid-August there were a number of panel sessions touching on Privacy and the Internet  and the legal implications of the Spencer decision. Finding a balance between Canadians’ increasing use of the Internet, for both good and bad purposes, and our increasing demand for privacy and anonymity except by choice will continue to challenge the legislatures and the courts.