On June 13, 2014, the Supreme Court of Canada delivered a major
decision affecting privacy. The matter involved a criminal
trial where the accused, Spencer, was facing certain child
The police had used a software program to identify anyone
sharing child pornography, and they located one such IP
(internet protocol) address in Saskatoon, with Shaw as the internet
service provider (ISP). The police then requested subscriber
information including name, address and telephone number from
The request was a routine request under Canada's federal
Personal Information Protection and Electronic Documents Act
(PIPEDA) which permits disclosure to a government institution which
has "identified its lawful authority" to obtain the
information and indicates that the disclosure is required to
enforce a law or carry out an investigation relating to enforcement
of a law.
Shaw complied with the request and provided the name, address
and telephone number, which happened to be for the accused's
sister. Spencer sought to exclude the evidence at trial based
on an unlawful search.
The Crown argued that the subject of the search was simply name,
address and telephone number, and therefore material privacy or
search issues did not arise. But the Supreme Court answered
that constitutional protection against search and seizure applies
not only to the information requested, but information which tends
to be revealed by the search – in this case, the identity of
the subscriber corresponds to particular Internet usage which can
of course say much.
The Court also recognized that anonymity in the context of
internet use deserves privacy protection under the law. The
Court did not believe this would threaten effectiveness of law
enforcement, as in cases such as this, it seemed clear that the
police had ample information to obtain a necessary production
The Court also examined whether Spencer had a reasonable
expectation of privacy, including with an examination of Shaw's
government authorities, they also, as is quite typical, linked to a
personal information and strict confidentiality. On the
whole, such terms therefore did not remove any expectation of
The Court specifically addressed section 7(3)(c.1)(ii) of PIPEDA
which has been used for such requests, and emphasized that this
section only permits disclosure if the government institution or
the police have lawful authority to request the disclosure. The
"It would be reasonable for an Internet user to expect that
a simple request by police would not trigger an obligation to
disclose personal information or defeat PIPEDA's general
prohibition on the disclosure of personal information without
The Court concluded that the information was unconstitutionally
Note that ultimately the evidence was not excluded by the
Supreme Court, since the police had not acted unreasonably based on
the state of the law prior to this new decision from the Supreme
This decision will have a major impact on disclosure of
subscriber information from ISPs and also on the federal
government's proposed expansion of these disclosure rights
under their Bill C-13.
(Case name: R. v. Spencer, 2014 SCC 43)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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