Canada: Landmark Decision Recognizes An Individual's Right To Privacy Over His Or Her Online Activities

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.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions