SUPREME
COURT OF CANADA
Between:
Matthew
David Spencer
Appellant
and
Her
Majesty The Queen
Respondent
and
Director
of Public Prosecutions,
Attorney
General of Ontario,
Attorney
General of Alberta,
Privacy
Commissioner of Canada,
Canadian
Civil Liberties Association and
Criminal
Lawyers’ Association of Ontario
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 87)
|
Cromwell J. (McLachlin
C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.
concurring)
|
r. v. spencer, 2014 SCC 43, [2014] S.C.R.
212
Matthew David Spencer Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Alberta,
Privacy Commissioner of Canada,
Canadian Civil Liberties Association and
Criminal Lawyers’ Association
of Ontario Interveners
Indexed as: R. v. Spencer
2014 SCC 43
File No.: 34644.
2013: December 9; 2014: June 13.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for saskatchewan
Constitutional
law — Charter of Rights — Search and seizure — Privacy — Police having
information that IP address used to access or download child pornography — Police
asking Internet service provider to voluntarily provide name and address of
subscriber assigned to IP address — Police using information to obtain search
warrant for accused’s residence — Whether police conducted unconstitutional
search by obtaining subscriber information matching IP address — Whether
evidence obtained as a result should be excluded — Whether fault element of
making child pornography available requires proof of positive facilitation — Criminal
Code, R.S.C. 1985, c. C-46, ss. 163.1(3) , (4) ,
487.014(1) — Personal Information Protection and Electronic Documents Act, S.C.
2000, c. 5, s. 7(3) (c.1)(ii) — Canadian Charter of Rights and Freedoms, s. 8 .
The
police identified the Internet Protocol (IP) address of a computer that someone
had been using to access and store child pornography through an Internet file-sharing
program. They then obtained from the Internet Service Provider (ISP), without prior judicial authorization,
the subscriber information associated with that IP address. The request was purportedly
made pursuant to s. 7(3) (c.1)(ii) of the Personal Information
Protection and Electronic Documents Act (PIPEDA ). This led
them to the accused. He had downloaded child pornography into a folder that
was accessible to other Internet users using the same file-sharing program. He
was charged and convicted at trial of possession of child pornography and
acquitted on a charge of making it available. The Court of Appeal upheld the
conviction, however set aside the acquittal on the making available charge and
ordered a new trial.
Held:
The appeal should be dismissed.
Whether
there is a reasonable expectation of privacy in the totality of the circumstances is assessed by considering and weighing a large
number of interrelated factors. The main dispute in this case turns on the
subject matter of the search and whether the accused’s subjective expectation
of privacy was reasonable. The two circumstances relevant to determining the
reasonableness of his expectation of privacy in this case are the nature of the
privacy interest at stake and the statutory and contractual framework governing
the ISP’s disclosure of subscriber information.
When
defining the subject matter of a search, courts have looked not only at the
nature of the precise information sought, but also at the nature of the
information that it reveals. In this case, the subject
matter of the search was not simply a name and address of someone in a
contractual relationship with the ISP. Rather, it was the identity of an
Internet subscriber which corresponded to particular Internet usage.
The
nature of the privacy interest engaged by the state conduct turns 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. In this case, the primary concern is with informational privacy.
Informational privacy is often equated with secrecy or confidentiality, and
also includes the related but wider notion of control over, access to and use
of information. However, particularly important in the context of Internet
usage is the understanding of privacy as anonymity. The identity of a person
linked to their use of the Internet must be recognized as giving rise to a
privacy interest beyond that inherent in the person’s name, address and
telephone number found in the subscriber information. Subscriber information,
by tending to link particular kinds of information to identifiable individuals,
may implicate privacy interests relating to an individual’s identity as the
source, possessor or user of that information. Some degree of anonymity is a
feature of much Internet activity and depending on the totality of the
circumstances, anonymity may be the foundation of a privacy interest that
engages constitutional protection against unreasonable search and seizure. In
this case, the police request to link a given IP address to subscriber
information was in effect a request to link a specific person to specific
online activities. This sort of request engages the anonymity aspect of the
informational privacy interest by attempting to link the suspect with
anonymously undertaken online activities, activities which have been recognized
in other circumstances as engaging significant privacy interests.
There
is no doubt that the contractual and statutory framework may be relevant to,
but not necessarily determinative of, whether there is a reasonable expectation
of privacy. In this case, the contractual and statutory frameworks overlap and
the relevant provisions provide little assistance in
evaluating the reasonableness of the accused’s expectation of privacy. Section
7(3) (c.1)(ii) of PIPEDA cannot be used as a factor to weigh
against the existence of a reasonable expectation of privacy since the proper
interpretation of the relevant provision itself depends on whether such a
reasonable expectation of privacy exists. 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 consent. The
contractual provisions in this case support the existence of a reasonable
expectation of privacy. The request by the police had no lawful authority in
the sense that while the police could ask, they had no authority to compel
compliance with that request. In the totality of the circumstances of this
case, there is a reasonable expectation of privacy in the subscriber
information. Therefore, the request by the police that the ISP voluntarily
disclose such information amounts to a search.
Whether
the search in this case was lawful will be dependent on whether the search was
authorized by law. 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.
There
is no dispute that the accused in a prosecution under s. 163.1(3) of the Criminal
Code must be proved to have had knowledge that the pornographic material
was being made available. This does not require however, that the accused must
knowingly, by some positive act, facilitate the availability of the material. The offence is complete once the accused knowingly
makes pornography available to others. Given that wilful blindness was a live
issue and that the trial judge’s error in holding that a positive act was
required to meet the mens rea component of the making available offence
resulted in his not considering the wilful blindness issue, the error could
reasonably be thought to have had a bearing on the trial judge’s decision to
acquit. The order for a new trial is affirmed.
Cases Cited
Referred
to: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment,
[1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Tessling,
2004 SCC 67, [2004] 3 S.C.R. 432; Alberta (Information and Privacy
Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62,
[2013] 3 S.C.R. 733; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R.
v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Gomboc, 2010 SCC 55,
[2010] 3 S.C.R. 211; R. v. Trapp, 2011 SKCA 143, 377 Sask. R. 246; R.
v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008
SCC 19, [2008] 1 S.C.R. 569; Dagg v. Canada (Minister of Finance),
[1997] 2 S.C.R. 403; McInerney
v. MacDonald, [1992] 2
S.C.R. 138; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wise, [1992]
1 S.C.R. 527; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu, 2013 SCC 60,
[2013] 3 S.C.R. 657; R. v.
Collins, [1987] 1 S.C.R.
265; R. v. McNeice, 2010 BCSC 1544 (CanLII); R. v. Grant, 2009
SCC 32, [2009] 2 S.C.R. 353; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R.
411; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 8 , 24(2) .
Criminal Code, R.S.C. 1985, c. C-46, ss.
163.1(3) , (4) , 487.014 .
Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 29(2)(g).
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 3 , 5(3) , 7 , Sch. 1, cl. 4.3.
Authors Cited
Canada. Report of the Task Force established by the Department of
Communications/Department of Justice. Privacy and Computers. Ottawa:
Information Canada, 1972.
Gleicher, Nathaniel. “Neither a Customer
Nor a Subscriber Be: Regulating the Release of User Information on the World
Wide Web” (2009), 118 Yale L.J. 1945.
Gutterman, Melvin. “A Formulation of the Value and Means Models of
the Fourth Amendment in the Age of Technologically Enhanced Surveillance”
(1988), 39 Syracuse L. Rev. 647.
Hubbard, Robert W., Peter DeFreitas and
Susan Magotiaux. “The Internet — Expectations of Privacy in a New Context”
(2002), 45 Crim. L.Q. 170.
Hunt, Chris D. L. “Conceptualizing Privacy and Elucidating its
Importance: Foundational Considerations for the Development of Canada’s
Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167.
Paton-Simpson, Elizabeth. “Privacy and the
Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J.
305.
Slane, Andrea, and Lisa M. Austin. “What’s In a Name? Privacy and
Citizenship in the Voluntary Disclosure of Subscriber Information in Online
Child Exploitation Investigations” (2011), 57 Crim. L.Q. 486.
Westin, Alan F. Privacy and Freedom.
New York: Atheneum, 1970.
APPEAL
from a judgment of the Saskatchewan Court of Appeal (Cameron, Ottenbreit and
Caldwell JJ.A.), 2011 SKCA 144, 377 Sask. R. 280, 528 W.A.C. 280, [2012] 4
W.W.R. 425, 283 C.C.C. (3d) 384, [2011] S.J. No. 729 (QL), 2011 CarswellSask
786, affirming the accused’s conviction for possession of child pornography and
setting aside the accused’s acquittal for making available child pornography entered
by Foley J., 2009 SKQB 341, 361 Sask. R. 1, [2009] S.J. No. 798 (QL), 2009
CarswellSask 905, and ordering a new trial. Appeal dismissed.
Aaron A. Fox, Q.C., and Darren
Kraushaar,
for the appellant.
Anthony B. Gerein, for the respondent.
Ronald C. Reimer and David Schermbrucker, for the intervener the Director
of Public Prosecutions.
Susan Magotiaux and Allison Dellandrea, for the intervener the
Attorney General of Ontario.
Jolaine Antonio, for the intervener the Attorney
General of Alberta.
Mahmud Jamal, Patricia Kosseim, Daniel Caron and Sarah
Speevak, for
the intervener the Privacy Commissioner of Canada.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Canadian
Civil Liberties Association.
Jonathan Dawe and Jill R. Presser, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of the Court was
delivered by
Cromwell J. —
I.
Introduction
[1]
The Internet raises a host of new and
challenging questions about privacy. This appeal relates to one of them.
[2]
The police identified the Internet Protocol (IP)
address of a computer that someone had been using to access and store child
pornography through an Internet file-sharing program. They then obtained from
the Internet Service Provider (ISP), without prior judicial authorization, the
subscriber information associated with that IP address. This led them to the
appellant, Mr. Spencer. He had downloaded child pornography into a folder that
was accessible to other Internet users using the same file-sharing program. He
was charged and convicted at trial of possession of child pornography and
acquitted on a charge of making it available.
[3]
At trial, Mr. Spencer claimed that the police
had conducted an unconstitutional search by obtaining subscriber information
matching the IP address and that the evidence obtained as a result should be
excluded. He also testified that he did not know that others could have access
to the shared folder and argued that he therefore did not knowingly make the
material in the folder available to others. The trial judge concluded that
there had been no breach of Mr. Spencer’s right to be secure against
unreasonable searches and seizures. However, he was of the view that the
“making available” offence required some “positive facilitation” of access to
the pornography, which Mr. Spencer had not done, and further he believed Mr.
Spencer’s evidence that he did not know that others could access his folder so
that the fault element (mens rea) of the offence had not been proved.
The judge therefore convicted Mr. Spencer of the possession offence, but
acquitted him of the making available charge.
[4]
The Court of Appeal upheld the conviction for
possession of child pornography, agreeing with the trial judge that obtaining
the subscriber information was not a search and holding that even if it were a
search, it would have been reasonable. The court, however, set aside the
acquittal on the making available charge on the basis that the trial judge had
been wrong to require proof of positive facilitation of access by others to the
material. A new trial was ordered on this charge.
[5]
The appeal to this Court raises four issues
which I would resolve as follows:
1.
Did the police obtaining the subscriber
information matching the IP address from the ISP constitute a search?
In my view, it did.
2.
If so, was the search authorized by law?
In my view,
it was not.
3.
If not, should the evidence obtained as a result
be excluded?
In my
view, the evidence should not be excluded.
4.
Did the trial judge err with respect to the
fault element of the “making available” offence?
The
judge did err and I would uphold the Court of Appeal’s order for a new trial.
II.
Analysis
A.
Did the Police Obtaining the Subscriber Information
Matching the IP Address From the ISP Constitute a Search?
[6]
Mr. Spencer maintains that the police were
conducting a search when they obtained the subscriber information associated
with the IP address from the ISP, Shaw Communications Inc. The respondent Crown
takes the opposite view. I agree with Mr. Spencer on this point. I will first
set out a summary of the relevant facts then turn to the legal analysis.
(1) Facts and Judicial History
[7]
Mr. Spencer, who lived with his sister,
connected to the Internet through an account registered in his sister’s name.
He used the file-sharing program LimeWire on his desktop computer to download
child pornography from the Internet. LimeWire is a free peer-to-peer
file-sharing program that, at the time, anyone could download onto their
computer. Peer-to-peer systems such as LimeWire allow users to download files
directly from the computers of other users. LimeWire does not have one central
database of files, but instead relies on its users to share their files
directly with others. It is commonly used to download music and movies and can
also be used to download both adult and child pornography. It was Mr. Spencer’s use of the file-sharing software that brought
him to the attention of the police and which ultimately led to the search at
issue in this case.
[8]
Det. Sgt. Darren Parisien (then Cst.) of
the Saskatoon Police Service, by using publicly available software, searched
for anyone sharing child pornography. He could access whatever another user of
the software had in his or her shared folder. In other words, he could “see”
what other users of the file-sharing software could “see”. He could also obtain
two numbers related to a given user: the IP address that corresponds to the
particular Internet connection through which a computer accesses the Internet
at the time and the globally unique identifier (GUID) number assigned to each
computer using particular software. The IP address of the computer from which
shared material is obtained is displayed as part of the file-sharing process.
There is little information in the record about the nature of IP addresses in
general or the IP addresses provided by Shaw to its subscribers. There is a
description in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at
paras. 21-26, which also notes some of the differences that may exist among IP
addresses. For the purposes of this case, what we know is that the IP address
obtained by Det. Sgt. Parisien matched computer activity at the particular
point in time that he was observing that activity.
[9]
Det. Sgt. Parisien generated a list of IP addresses for computers
that had shared what he believed to be child pornography. He then ran that list
of IP addresses against a database which matches IP addresses with approximate
locations. He found that one of the IP addresses was suspected to be in
Saskatoon, with Shaw as the ISP.
[10]
Det. Sgt. Parisien then determined that Mr. Spencer’s computer
was online and connected to LimeWire. As a result, he (along with any LimeWire
user) was able to browse the shared folder. He saw an extensive amount of what
he believed to be child pornography. What he lacked was knowledge of where
exactly the computer was and who was using it.
[11]
To connect the computer usage to a location and
potentially a person, investigators made a written “law enforcement request” to
Shaw for the subscriber information including the name, address and telephone
number of the customer using that IP address. The request, which was
purportedly made pursuant to s. 7(3) (c.1)(ii) of the Personal
Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA ),
indicated that police were investigating an offence under the Criminal Code,
R.S.C. 1985, c. C-46 , pertaining to child pornography and the Internet and that
the subscriber information was being sought as part of an ongoing
investigation. (The full text of the relevant statutory provisions is set out
in an Appendix.) Investigators did not have or try to obtain a production order
(i.e. the equivalent of a search warrant in this context).
[12]
Shaw complied with the request and provided the
name, address and telephone number of the customer associated with the IP
address, Mr. Spencer’s sister. With this information in hand, the police
obtained a warrant to search Ms. Spencer’s home (where Mr. Spencer lived) and
seize his computer, which they did. The search of Mr. Spencer’s computer
revealed about 50 child pornography images and two child pornography videos.
[13]
Mr. Spencer was charged with possessing child
pornography contrary to s. 163.1(4) of the Criminal Code and making
child pornography available over the Internet contrary to s. 163.1(3) . There is
no dispute that the images found in his shared folder were child pornography.
[14]
At trial, Mr. Spencer sought to exclude the
evidence found on his computer on the basis that the police actions in
obtaining his address from Shaw without prior judicial authorization amounted
to an unreasonable search contrary to s. 8 of the Canadian Charter of Rights
and Freedoms . The trial judge rejected this contention and convicted Mr.
Spencer of the possession count. On appeal, the Saskatchewan Court of Appeal
upheld the judge’s decision with respect to the search issue.
(2) Was the Request to Shaw a Search?
[15]
Under s. 8 of the Charter , “[e]veryone
has the right to be secure against unreasonable search or seizure.” 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: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at
pp. 156-57; R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28; R. v.
Plant, [1993] 3 S.C.R. 281, at pp. 292-93; R. v. Tessling, 2004 SCC
67, [2004] 3 S.C.R. 432, at paras. 12-16; Alberta (Information and Privacy
Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC
62, [2013] 3 S.C.R. 733, at para. 22.
[16]
The first issue is whether this protection
against unreasonable searches and seizures was engaged here. That depends on
whether what the police did to obtain the subscriber information matching the
IP address was a search or seizure within the meaning of s. 8 of the Charter .
The answer to this question turns on whether, in the totality of the
circumstances, Mr. Spencer had a reasonable expectation of privacy in the
information provided to the police by Shaw. If he did, then obtaining that
information was a search.
[17]
We assess whether there is a reasonable
expectation of privacy in the totality of the circumstances by considering and
weighing a large number of interrelated factors. These include both factors
related to the nature of the privacy interests implicated by the state action
and factors more directly concerned with the expectation of privacy, both
subjectively and objectively viewed, in relation to those interests: see,
e.g., Tessling, at para. 38; Ward, at para. 65. The fact that
these considerations must be looked at in the “totality of the circumstances”
underlines the point that they are often interrelated, that they must be
adapted to the circumstances of the particular case and that they must be
looked at as a whole.
[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: Tessling, at para.
32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27;
R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this
is not a purely factual inquiry. The reasonable expectation of privacy standard
is normative rather than simply descriptive: Tessling, at para. 42.
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”: Patrick,
at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at
para. 34, and Ward, at paras. 81-85.
[19]
I can deal quite briefly with two aspects of the
appeal. The trial judge in this case held that there was no subjective
expectation of privacy in this case: 2009 SKQB 341, 361 Sask. R. 1, at para.
18. However, as I will explain below, the trial judge reached this conclusion
by incorrectly defining the subject matter of the search. On the proper
understanding of the scope of the search, Mr. Spencer’s subjective expectation
of privacy in his online activities can readily be inferred from his use of the
network connection to transmit sensitive information: Cole, at para. 43.
Mr. Spencer’s direct interest in the subject matter of the search is equally
clear. Though he was not personally a party to the contract with the ISP, he
had access to the Internet with the permission of the subscriber and his use of
the Internet was by means of his own computer in his own place of residence.
[20]
The main dispute in this case thus turns on the
subject matter of the search and whether Mr. Spencer’s subjective expectation
of privacy was reasonable. The two circumstances relevant to determining the
reasonableness of his expectation of privacy in this case are the nature of the
privacy interest at stake and the statutory and contractual framework governing
the ISP’s disclosure of subscriber information.
[21]
In this case, I have found it helpful to look
first at the subject matter of the search, then at the nature of the privacy
interests implicated by the state actions and then finally at the governing
contractual and statutory framework. While these subjects are obviously
interrelated, approaching the analysis under these broad headings provides a
degree of focus while permitting full examination of the “totality of the
circumstances”.
(a) The Subject Matter of the Search
[22]
Mr. Spencer alleges that the police request to
Shaw is a state action that constitutes a search or seizure for the purposes of
s. 8 of the Charter . We must therefore consider what the subject matter
of that request was in order to be able to identify the privacy interests that
were engaged by it.
[23]
In many cases, defining the subject matter of
the police action that is alleged to be a search is straightforward. In others,
however, it is not. This case falls into the latter category. The parties and
the courts below have markedly divergent perspectives on this important issue,
a divergence which is reflected in the jurisprudence: see, for example, the
authorities reviewed in Ward, at para. 3.
[24]
Mr. Spencer contends that the subject matter of
the alleged search was core biographical data, revealing intimate and private
information about the people living at the address provided by Shaw which
matched the IP address. The Crown, on the other hand, maintains that the
subject matter of the alleged search was simply a name, address and telephone
number matching a publicly available IP address.
[25]
These divergent views were reflected in the
decisions of the Saskatchewan courts. The trial judge adopted the Crown’s view
that what the police sought and obtained was simply generic information that
does not touch on the core of Mr. Spencer’s biographical information.
Ottenbreit J.A. in the Court of Appeal was of largely the same view. For him,
the information sought by the police in this case simply established 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”: 2011 SKCA 144, 377 Sask. R. 280, at para. 110 (see also R. v. Trapp,
2011 SKCA 143, 377 Sask. R. 246, at paras. 119-24 and 134). In contrast to this
approach, Caldwell J.A. (Cameron J.A. concurring on this point) held that in
characterizing the subject matter of the alleged search, it is important to
look beyond the “mundane” subscriber information such as name and address
(para. 22). The potential of that information to reveal intimate details of the
lifestyle and personal choices of the individual must also be considered: see
also Trapp, per Cameron J.A., at paras. 33-37.
[26]
I am in substantial agreement with Caldwell and
Cameron JJ.A. on this point. While, in many cases, defining the subject matter
of the search will be uncontroversial, in cases in which it is more difficult,
the Court has taken a broad and functional approach to the question, examining
the connection between the police investigative technique and the privacy interest
at stake. The Court has looked at not only the nature of the precise
information sought, but also at the nature of the information that it reveals.
[27]
A number of decisions of the Court reflect this
approach. I begin with Plant. There, the Court, dealing with
informational privacy, stressed the strong claim to privacy in relation to
information that is at the “biographical core of personal information which
individuals in a free and democratic society would wish to maintain and control
from dissemination to the state”: p. 293. Importantly, the Court went on to
make clear that s. 8 protection is accorded not only to the information which
is itself of that nature, but also to “information which tends to reveal
intimate details of the lifestyle and personal choices of the individual”: ibid.
(emphasis added).
[28]
Tessling took the
same approach, although it led to a different conclusion. The subject matter of
the alleged search was held to be the heat emitted from the surface of a
building. The Forward Looking Infra-Red (FLIR) imaging technique was used to
help assess the activities that transpired inside a house, but the heat
emissions by themselves could not distinguish between one heat source and
another. In short, the heat emanations were, on their own, meaningless because
they did not permit any inferences about the precise activity giving rise to
the heat: paras. 35-36. The critical question was: what inferences about
activity inside the home — admittedly a highly private zone — did the FLIR
images support?
[29]
I turn next to R. v. Kang-Brown, 2008 SCC
18, [2008] 1 S.C.R. 456, and the companion appeal in R. v. A.M., 2008
SCC 19, [2008] 1 S.C.R. 569. While the Court divided on other points, it was
unanimous in holding that the dog sniff of Mr. Kang-Brown’s bag constituted a
search. As explained by both Deschamps and Bastarache JJ., the dog sniffing at
the air in the vicinity of the bag functioned as an investigative procedure
that allowed for a “strong, immediate and direct inference” about what was or
was not inside the bag: Deschamps J., at paras. 174-75; Bastarache J., at
para. 227. Thus, while the “information” obtained by the sniffer dog was simply
the smell of the air outside the bag, the dog’s reaction to it provided the
police with a strong inference as to what was inside. As Binnie J. put it in A.M.
(which concerned a dog sniff of the accused’s backpack), “[b]y use of the dog,
the policeman could ‘see’ through the concealing fabric of the backpack”: para.
67.
[30]
How to characterize the subject matter of an alleged
search was addressed by the Court most recently in Gomboc. While the
Court was divided on other matters, it was unanimous about the framework that
must be applied in considering the subject matter of a “search”. The Court
considered the strength of the inference between data derived from a digital
recording ammeter (DRA) and particular activities going on in a residence in
assessing whether use of the DRA constituted a search. Abella J. (Binnie and
LeBel JJ. concurring) took into account “the strong and reliable inference
that can be made from the patterns of electricity consumption . . . as to the
presence within the home of one particular activity”: para. 81 (emphasis
added). The Chief Justice and Fish J. referred to the fact that the DRA data
“sheds light on private activities within the home”: para. 119. Deschamps J.
(Charron, Rothstein and Cromwell JJ. concurring) spoke in terms of the extent
to which the DRA data was revealing of activities in the home: para. 38.
[31]
Thus, it is clear that the tendency of
information sought to support inferences in relation to other personal
information must be taken into account in characterizing the subject matter of
the search. The correct approach was neatly summarized by Doherty J.A. in Ward,
at para. 65. When identifying the subject matter of an alleged search, the
court must not do so “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”: ibid.
[32]
Applying this approach to the case at hand, I
substantially agree with the conclusion reached by Cameron J.A. in Trapp and
adopted by Caldwell J.A. in this case. The subject matter of the search was not
simply a name and address of someone in a contractual relationship with Shaw.
Rather, it was the identity of an Internet subscriber which corresponded to
particular Internet usage. As Cameron J.A. put it, at para. 35 of Trapp:
To label information of this kind as
mere “subscriber information” or “customer information”, or nothing but “name,
address, and telephone number information”, tends to obscure its true nature. I
say this because these characterizations gloss over the significance of an IP
address and what such an address, once identified with a particular individual,
is capable of revealing about that individual, including the individual’s
online activity in the home.
[33]
Here, the subject matter of the search is the
identity of a subscriber whose Internet connection is linked to particular,
monitored Internet activity.
(b) Nature of the Privacy Interest Potentially
Compromised by the State Action
[34]
The nature of the privacy interest engaged by
the state conduct is another facet of the totality of the circumstances and an
important factor in assessing the reasonableness of an expectation of privacy.
The Court has previously emphasized an understanding of informational privacy
as confidentiality and control of the use of intimate information about
oneself. In my view, a somewhat broader understanding of the privacy interest
at stake in this case is required to account for the role that anonymity plays
in protecting privacy interests online.
[35]
Privacy is admittedly a “broad and somewhat
evanescent concept”: Dagg v. Canada (Minister of Finance), [1997] 2
S.C.R. 403, at para. 67. Scholars have noted the theoretical disarray of the
subject and the lack of consensus apparent about its nature and limits: see,
e.g., C. D. L. Hunt, “Conceptualizing Privacy and Elucidating its Importance:
Foundational Considerations for the Development of Canada’s Fledgling Privacy
Tort” (2011), 37 Queen’s L.J. 167, at pp. 176-77. Notwithstanding these
challenges, the Court has described three broad types of privacy interests —
territorial, personal, and informational — which, while often overlapping, have
proved helpful in identifying the nature of the privacy interest or interests
at stake in particular situations: see, e.g., Dyment, at pp. 428-29; Tessling,
at paras. 21-24. These broad descriptions of types of privacy interests are
analytical tools, not strict or mutually-exclusive categories.
[36]
The nature of the privacy interest does not
depend on whether, in the particular case, privacy shelters legal or illegal
activity. The analysis turns 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. To paraphrase Binnie J. in Patrick, the
issue is not whether Mr. Spencer had a legitimate privacy interest in
concealing his use of the Internet for the purpose of accessing child
pornography, but whether people generally have a privacy interest in subscriber
information with respect to computers which they use in their home for private
purposes: Patrick, at para. 32.
[37]
We are concerned here primarily with
informational privacy. In addition, because the computer identified and in a
sense monitored by the police was in Mr. Spencer’s residence, there is an
element of territorial privacy in issue as well. However, in this context, the
location where the activity occurs is secondary to the nature of the activity
itself. Internet users do not expect their online anonymity to cease when they
access the Internet outside their homes, via smartphones, or portable devices.
Therefore, here as in Patrick, at para. 45, the fact that a home was
involved is not a controlling factor but is nonetheless part of the totality of
the circumstances: see, e.g., Ward, at para. 90.
[38]
To return to informational privacy, it seems to
me that privacy in relation to information includes at least three conceptually
distinct although overlapping understandings of what privacy is. These are
privacy as secrecy, privacy as control and privacy as anonymity.
[39]
Informational privacy is often equated with
secrecy or confidentiality. For example, a patient has a reasonable expectation
that his or her medical information will be held in trust and confidence by the
patient’s physician: see, e.g., McInerney v. MacDonald, [1992] 2 S.C.R.
138, at p. 149.
[40]
Privacy also includes the related but wider
notion of control over, access to and use of information, that is, “the claim
of individuals, groups, or institutions to determine for themselves when, how,
and to what extent information about them is communicated to others”: A. F.
Westin, Privacy and Freedom (1970), at p. 7, cited in Tessling,
at para. 23. La Forest J. made this point in Dyment. The understanding
of informational privacy as control “derives from the assumption that all
information about a person is in a fundamental way his own, for him to
communicate or retain for himself as he sees fit” (Dyment, at p. 429,
quoting from Privacy and Computers, the Report of the Task Force
established by the Department of Communications/Department of Justice (1972),
at p. 13). Even though the information will be communicated and cannot be
thought of as secret or confidential, “situations abound where the reasonable
expectations of the individual that the information shall remain confidential
to the persons to whom, and restricted to the purposes for which it is
divulged, must be protected” (pp. 429-30); see also R. v. Duarte, [1990]
1 S.C.R. 30, at p. 46.
[41]
There is also a third conception of
informational privacy that is particularly important in the context of Internet
usage. This is the understanding of privacy as anonymity. In my view, the
concept of privacy potentially protected by s. 8 must include this
understanding of privacy.
[42]
The notion of privacy as anonymity is not novel.
It appears in a wide array of contexts ranging from anonymous surveys to the
protection of police informant identities. A person responding to a survey
readily agrees to provide what may well be highly personal information. A
police informant provides information about the commission of a crime. The
information itself is not private — it is communicated precisely so that it
will be communicated to others. But the information is communicated on the
basis that it will not be identified with the person providing it. Consider
situations in which the police want to obtain the list of names that correspond
to the identification numbers on individual survey results or to which the
defence in a criminal case wants to obtain the identity of the informant who
has provided information that has been disclosed to the defence. The privacy
interest at stake in these examples is not simply the individual’s name, but
the link between the identified individual and the personal information
provided anonymously. As the intervener the Canadian Civil Liberties
Association urged in its submissions, “maintaining anonymity can be integral to
ensuring privacy”: factum, at para. 7.
[43]
Westin identifies anonymity as one of the basic
states of privacy. Anonymity permits individuals to act in public places but to
preserve freedom from identification and surveillance: pp. 31-32; see A. Slane
and L. M. Austin, “What’s In a Name? Privacy and Citizenship in the Voluntary
Disclosure of Subscriber Information in Online Child Exploitation
Investigations” (2011), 57 Crim. L.Q. 486, at p. 501. The Court’s
decision in R. v. Wise, [1992] 1 S.C.R. 527, provides an example of
privacy in a public place. The Court held that the ubiquitous monitoring of a
vehicle’s whereabouts on public highways amounted to a violation of the
suspect’s reasonable expectation of privacy. It could of course have been
argued that the electronic device was simply a convenient way of keeping track
of where the suspect was driving his car, something that he was doing in public
for all to see. But the Court did not take that approach.
[44]
La Forest J. (who, while dissenting on the issue
of exclusion of the evidence under s. 24(2) , concurred with respect to the
existence of a reasonable expectation of privacy), explained that “[i]n a
variety of public contexts, we may expect to be casually observed, but may
justifiably be outraged by intensive scrutiny. In these public acts we do
not expect to be personally identified and subject to extensive surveillance,
but seek to merge into the ‘situational landscape’”: p. 558 (emphasis
added), quoting M. Gutterman, “A Formulation of the Value and Means Models of
the Fourth Amendment in the Age of Technologically Enhanced Surveillance”
(1988), 39 Syracuse L. Rev. 647, at p. 706. The mere fact that someone
leaves the privacy of their home and enters a public space does not mean that
the person abandons all of his or her privacy rights, despite the fact that as
a practical matter, such a person may not be able to control who observes him
or her in public. Thus, in order to uphold the protection of privacy rights in
some contexts, we must recognize anonymity as one conception of privacy: see E.
Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy
in Public Places” (2000), 50 U.T.L.J. 305, at pp. 325-26; Westin, at
p. 32; Gutterman, at p. 706.
[45]
Recognizing that anonymity is one conception of
informational privacy seems to me to be particularly important in the context
of Internet usage. One form of anonymity, as Westin explained, is what is
claimed by an individual who wants to present ideas publicly but does not want
to be identified as their author: p. 32. Here, Westin, publishing in 1970,
anticipates precisely one of the defining characteristics of some types of
Internet communication. The communication may be accessible to millions of
people but it is not identified with its author.
[46]
Moreover, the Internet has exponentially
increased both the quality and quantity of information that is stored about
Internet users. Browsing logs, for example, may provide detailed information
about users’ interests. Search engines may gather records of users’ search
terms. Advertisers may track their users across networks of websites, gathering
an overview of their interests and concerns. “Cookies” may be used to track
consumer habits and may provide information about the options selected within a
website, which web pages were visited before and after the visit to the host
website and any other personal information provided: see N. Gleicher, “Neither
a Customer Nor a Subscriber Be: Regulating the Release of User Information on the
World Wide Web” (2009), 118 Yale L.J. 1945, at pp. 1948-49; R. W.
Hubbard, P. DeFreitas and S. Magotiaux, “The Internet — Expectations of Privacy
in a New Context” (2002), 45 Crim. L.Q. 170, at pp. 189-91. 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: see Slane
and Austin, at pp. 500-3.
[47]
In my view, the identity of a person linked to
their use of the Internet must be recognized as giving rise to a privacy
interest beyond that inherent in the person’s name, address and telephone
number found in the subscriber information. A sniffer dog provides information
about the contents of the bag and therefore engages the privacy interests
relating to its contents. DRA readings provide information about what is going
on inside a home and therefore may engage the privacy interests relating to
those activities. Similarly, subscriber information, by tending to link
particular kinds of information to identifiable individuals, may implicate
privacy interests relating not simply to the person’s name or address but to
his or her identity as the source, possessor or user of that information.
[48]
Doherty J.A. made this point with his usual
insight and clarity in Ward. “Personal privacy” he wrote “protects an
individual’s ability to function on a day-to-day basis within society while
enjoying a degree of anonymity that is essential to the individual’s personal
growth and the flourishing of an open and democratic society”: para. 71. He
concluded that some degree of anonymity is a feature of much Internet activity
and that, “[d]epending on the totality of the circumstances, . . . anonymity
may enjoy constitutional protection under s. 8 ”: para. 75. I agree. Thus,
anonymity may, depending on the totality of the circumstances, be the
foundation of a privacy interest that engages constitutional protection against
unreasonable search and seizure.
[49]
The intervener 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. In light of the grave nature of
the criminal wrongs that can be committed online, this concern cannot be taken
lightly. However, in my view, recognizing that there may be a privacy
interest in anonymity depending on the circumstances falls short of recognizing
any “right” to anonymity and does not threaten the effectiveness of law
enforcement in relation to offences committed on the Internet. In this case,
for example, it seems clear 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.
[50]
Applying this framework to the facts of the
present case is straightforward. In the circumstances of this case, the police
request to link a given IP address to subscriber information was in effect a
request to link a specific person (or a limited number of persons in the case
of shared Internet services) to specific online activities. This sort of
request engages the anonymity aspect of the informational privacy interest by
attempting to link the suspect with anonymously undertaken online activities,
activities which have been recognized by the Court in other circumstances as
engaging significant privacy interests: R. v. Morelli, 2010 SCC 8,
[2010] 1 S.C.R. 253, at para. 3; Cole, at para.
47; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 40-45.
[51]
I conclude therefore that the police request to
Shaw for subscriber information corresponding to specifically observed,
anonymous Internet activity engages a high level of informational privacy. I
agree with Caldwell J.A.’s conclusion on this point:
. . . a
reasonable and informed person concerned about the protection of privacy would
expect one’s activities on one’s own computer used in one’s own home would be
private. . . . In my judgment, it matters not that the personal attributes of
the Disclosed Information pertained to Mr. Spencer’s sister because Mr. Spencer
was personally and directly exposed to the consequences of the police conduct
in this case. As such, the police conduct prima facie engaged a personal
privacy right of Mr. Spencer and, in this respect, his interest in the privacy
of the Disclosed Information was direct and personal. [para. 27]
(c) Reasonable Expectation of Privacy
[52]
The next question is whether Mr. Spencer’s
expectation of privacy was reasonable. The trial judge found that there could
be no reasonable expectation of privacy in the face of the relevant contractual
and statutory provisions (para. 19), a conclusion with which Caldwell J.A.
agreed on appeal: para. 42. Cameron J.A., however, was doubtful that the
contractual and statutory terms had this effect in the context of this case:
para. 98.
[53]
In this Court, Mr. Spencer maintains that the
contractual and statutory terms did not undermine a reasonable expectation of
privacy with respect to the subscriber information. He submits that the
contractual provisions do nothing more than suggest that the information will
not be provided to police unless required by law and that PIPEDA , whose
purpose is to protect privacy rights, supports rather than negates the
reasonableness of an expectation of privacy in this case. The Crown disagrees
and supports the position taken on this point by Caldwell J.A. in the Court of
Appeal.
[54]
There is no doubt that the contractual and
statutory framework may be relevant to, but not necessarily determinative of,
whether there is a reasonable expectation of privacy. So, for example in Gomboc,
Deschamps J. writing for four members of the Court, found that the terms
governing the relationship between the electricity provider and its customer
were “highly significant” to Mr. Gomboc’s reasonable expectation of privacy,
but treated it as “one factor amongst many which must be weighed in assessing
the totality of the circumstances”: paras. 31-32. She also emphasized that when
dealing with contracts of adhesion in the context of a consumer relationship,
it was necessary to “procee[d] with caution” when determining the impact that
such provision would have on the reasonableness of an expectation of privacy:
para. 33. The need for caution in this context was pointedly underlined in the
dissenting reasons of the Chief Justice and Fish J. in that case: paras.
138-42.
[55]
The contractual and statutory frameworks
overlap in the present case because the Shaw Joint Terms of Service make
reference to PIPEDA , and the scope of permitted disclosure under PIPEDA
turns partly on whether the customer has consented to the disclosure of
personal information. I must first set out the details of these schemes before
turning to their impact on the reasonable expectations analysis. In doing so,
it becomes apparent that the relevant provisions provide little assistance in
evaluating the reasonableness of Mr. Spencer’s expectation of privacy.
[56]
Shaw provides Internet services to its customers under a standard
form “Joint Terms of Service” agreement. Additional terms and conditions are
provided in Shaw’s “Acceptable Use Policy” and its “Privacy Policy”. The terms
of these agreements are posted online on Shaw’s website and change from time to
time. The investigators sought the subscriber information for
the IP address used on August 31, 2007 in their request to Shaw.
[57]
Mr. Spencer was not personally a party to these
agreements, as he accessed the Internet through his sister’s subscription. It
is common practice for multiple users to share a common Internet connection. A
reasonable user would be aware that the use of the service would be governed by
certain terms and conditions, and those terms and conditions were readily
accessible through Shaw’s website. This case does not require us to decide
whether Mr. Spencer was bound by the terms of the contract with Shaw. Quite
apart from contractual liability, the terms on which he gained access to the
Internet are a relevant circumstance in assessing the reasonableness of his
expectation of privacy. There are three relevant sets of provisions which,
taken as a whole, provide a confusing and unclear picture of what Shaw would do
when faced with a police request for subscriber information. The Joint Terms of
Service at first blush appear to permit broad disclosure because they provide,
among other things, that “Shaw may disclose any information as is necessary to .
. . satisfy any legal, regulatory or other governmental request”. This general
provision, however, must be read in light of the more specific provision
relating to disclosure of IP addresses and other identifying information in the
context of criminal investigations contained in the Acceptable Use Policy,
which in turn is subject to the Privacy Policy.
[58]
The Acceptable Use Policy (last updated on June
18, 2007) provides that Shaw is authorized to cooperate with law enforcement
authorities in the investigation of criminal violations, including supplying
information identifying a subscriber in accordance with its Privacy Policy.
The provision reads as follows:
You hereby authorize Shaw to cooperate
with (i) law enforcement authorities in the investigation of suspected criminal
violations, and/or (ii) system administrators at other Internet service
providers or other network or computing facilities in order to enforce this
Agreement. Such cooperation may include Shaw providing the username, IP address,
or other identifying information about a subscriber, in accordance with the
guidelines set out in Shaw’s Privacy Policy. [Emphasis added.]
[59]
The Privacy Policy in the record (last updated
on November 12, 2008) states that Shaw is committed to protecting personal
information, which is defined as information about an identifiable individual.
One of the ten principles set out in the Privacy Policy deals with limiting the
disclosure of personal information (principle 5). The policy limits the
circumstances under which personal information will be disclosed without the
customer’s knowledge or consent to “exceptional circumstances, as permitted by
law”. Shaw may disclose information to its partners in order to provide its
services and, in such cases, the information is governed by “strict
confidentiality standards and policies” to keep the information secure and to
ensure it is treated in accordance with PIPEDA . The Privacy Policy also
provides that “Shaw may disclose Customer’s Personal Information to: . . . a
third party or parties, where the Customer has given Shaw Consent to such
disclosure or if disclosure is required by law, in accordance with The
Personal Information Protection and Electronic Documents Act ” (emphasis
added).
[60]
Whether or not disclosure of personal
information by Shaw is “permitted” or “required by law” in turn depends on an
analysis of the applicable statutory framework. The contractual provisions,
read as a whole, are 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. The statutory framework provided by PIPEDA
is not much more illuminating.
[61]
Shaw’s collection, use, and disclosure of the
personal information of its subscribers is subject to PIPEDA , which
protects personal information held by organizations engaged in commercial
activities from being disclosed without the knowledge or consent of the person
to whom the information relates: Sch. 1, clause 4.3. Section 7 contains several
exceptions to this general rule and permits organizations to disclose personal
information without consent. The exception relied on in this case is s. 7(3) (c.1)(ii).
It permits disclosure to a government institution that has requested the
disclosure for the purpose of law enforcement and has stated its “lawful
authority” for the request. The provisions of PIPEDA are not of much
help in determining whether there is a reasonable expectation of privacy in
this case. They lead us in a circle.
[62]
Section 7(3) (c.1)(ii) allows for
disclosure without consent to a government institution where that institution
has identified its lawful authority to obtain the information. But the
issue is whether there was such lawful authority which in turn depends in part
on whether there was a reasonable expectation of privacy with respect to the
subscriber information. PIPEDA thus cannot be used as a factor to weigh
against the existence of a reasonable expectation of privacy since the proper
interpretation of the relevant provision itself depends on whether such a
reasonable expectation of privacy exists. Given that the purpose of PIPEDA
is to establish rules governing, among other things, disclosure “of personal
information in a manner that recognizes the right of privacy of
individuals with respect to their personal information” (s. 3 ), 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 consent.
[63]
I am aware that I have reached a different
result from that reached in similar circumstances by the Ontario Court of
Appeal in Ward, where the court held that the provisions of PIPEDA were
a factor which weighed against finding a reasonable expectation of privacy in
subscriber information. This conclusion was based on two main considerations.
The first was that an ISP has a legitimate interest in assisting in law
enforcement relating to crimes committed using its services: para. 99. The
second was the grave nature of child pornography offences, which made it
reasonable to expect that an ISP would cooperate with a police investigation:
paras. 102-3. While these considerations are certainly relevant from a policy
perspective, they cannot override the clear statutory language of s. 7(3) (c.1)(ii)
of PIPEDA , which permits disclosure only if a request is made by a
government institution with “lawful authority” to request the disclosure. It is
reasonable to expect that an organization bound by PIPEDA will respect
its statutory obligations with respect to personal information. The Court of
Appeal in Ward held that s. 7(3) (c.1)(ii) must be read in light
of s. 5(3) , 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”. This rule of “reasonable disclosure” was
used as a basis to invoke considerations such as allowing ISPs to cooperate
with the police and preventing serious crimes in the interpretation of PIPEDA .
Section 5(3) is a guiding principle that underpins the interpretation of the
various provisions of PIPEDA . It does not allow for a departure from the
clear requirement that a requesting government institution possess “lawful
authority” and so does not resolve the essential circularity of using s. 7(3) (c.1)(ii)
as a factor in determining whether a reasonable expectation of privacy exists.
[64]
I also note with respect to an ISP’s legitimate
interest in preventing crimes committed through its services that entirely
different considerations may apply where an ISP itself detects illegal activity
and of its own motion wishes to report this activity to the police. Such a
situation falls under a separate, broader exemption in PIPEDA , namely s.
7(3) (d). The investigation in this case was begun as a police
investigation and the disclosure of the subscriber information arose out of the
request letter sent by the police to Shaw.
[65]
The overall impression created by these terms is
that disclosure at the request of the police would be made only where required
or permitted by law. Such disclosure is only permitted by PIPEDA in
accordance with the exception in s. 7 , which in this case would require the
requesting police to have “lawful authority” to request the disclosure. For
reasons that I will set out in the next section, this request had no lawful
authority in the sense that while the police could ask, they had no authority
to compel compliance with that request. I conclude that, if anything, the
contractual provisions in this case support the existence of a reasonable
expectation of privacy, since the Privacy Policy narrowly circumscribes Shaw’s
right to disclose the personal information of subscribers.
[66]
In my view, in the totality of the circumstances
of this case, there is a reasonable expectation of privacy in the subscriber
information. The disclosure of this information will often amount to the
identification of a user with intimate or sensitive activities being carried
out online, usually on the understanding that these activities would be
anonymous. A request by a police officer that an ISP voluntarily disclose such
information amounts to a search.
[67]
The intervener the Attorney General of Alberta
raised a concern that if the police were not permitted to request disclosure of
subscriber information, then other routine inquiries that might reveal
sensitive information about a suspect would also be prohibited, and this would
unduly impede the investigation of crimes. For example, when the police
interview the victim of a crime, core biographical details of a suspect’s
lifestyle might be revealed. I do not agree that this result follows from the
principles set out in these reasons. Where a police officer requests disclosure
of information relating to a suspect from a third party, whether there is a
search depends on whether, in light of the totality of the circumstances, the
suspect has a reasonable expectation of privacy in that information: Plant,
at p. 293; Gomboc, at paras. 27-30, per Deschamps J. In Duarte,
the Court distinguished between a person repeating a conversation with a
suspect to the police and the police procuring an audio recording of the same
conversation. The Court held that the danger is “not the risk that someone will
repeat our words but the much more insidious danger inherent in allowing the
state, in its unfettered discretion, to record and transmit our words”: at pp.
43-44. Similarly in this case, the police request that the ISP disclose the
subscriber information was in effect a request to link Mr. Spencer with precise
online activity that had been the subject of monitoring by the police and thus
engaged a more significant privacy interest than a simple question posed by the
police in the course of an investigation.
B. Was the Search Lawful?
[68]
A warrantless search, such as the one that
occurred in this case, is presumptively unreasonable: R. v. Collins,
[1987] 1 S.C.R. 265. The Crown bears the burden of rebutting
this presumption. 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: p. 278. Mr. Spencer has not challenged the constitutionality
of the laws that purportedly authorized the search. He did raise concerns about
the reasonableness of the manner, but in my view, these are groundless.
Accordingly, we need only consider whether the search was authorized by law.
[69]
The Crown supports the conclusions of Caldwell
and Cameron JJ.A. in the Court of Appeal that any search was lawful, relying on
the combined effect of s. 487.014 of the Criminal Code and s. 7(3) (c.1)(ii)
of PIPEDA . I respectfully do not agree.
[70]
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).
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.
[71]
“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 include several things.
It 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. It may refer to the authority of police to conduct warrantless
searches under exigent circumstances or where authorized by a reasonable law: Collins.
As the intervener the Privacy Commissioner of Canada submitted, interpreting
“lawful authority” as requiring more than a bare request by law enforcement
gives this term a meaningful role to play in the context of s. 7(3) and should
be preferred over alternative meanings that do not do so. In short, I agree
with the Ontario Court of Appeal in Ward on this point that neither s.
487.014(1) of the Criminal Code , nor PIPEDA creates any police
search and seizure powers: para. 46.
[72]
I recognize that this conclusion differs from
that of the Saskatchewan Court of Appeal in Trapp, at para. 66, and the
British Columbia Supreme Court in R. v. McNeice, 2010 BCSC 1544
(CanLII), at para. 43. The Court of Appeal in Trapp read s. 487.014(1)
together with s. 29(2)(g) of The Freedom of Information and Protection of
Privacy Act, S.S. 1990-91, c. F-22.01, an analogous provision to s. 7(3) (c.1)(ii)
of PIPEDA , although one from which the “lawful authority” requirement is
absent. The court held that s. 487.014(1) gave the police a power to make any
inquiries that were not otherwise prohibited by law. The court in McNeice
took the same approach, although that case concerned s. 7(3) (c.1)(ii) of
PIPEDA , the same provision at issue in this case.
[73]
With respect, I cannot accept that this conclusion
applies to s. 7(3) (c.1)(ii) of PIPEDA . Section 487.014(1) is a
declaratory provision that confirms the existing common law powers of police
officers to make enquiries, as indicated by the fact that the section begins
with the phrase “[f]or greater certainty”: see Ward, at para. 49. PIPEDA
is a statute whose purpose, as set out in s. 3 , 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, I do not see how they
could gain a new search power through the combination of a declaratory
provision and a provision enacted to promote the protection of personal
information.
[74]
The subscriber information obtained by police
was used in support of the Information to Obtain which led to the issuance of a
warrant to search Ms. Spencer’s residence. Without that information, 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. I conclude,
therefore, that the conduct of the search of Ms. Spencer’s residence violated
the Charter : Plant, at p. 296; Hunter v. Southam,
at p. 161. Nothing in these reasons addresses or diminishes any existing
powers of the police to obtain subscriber information in exigent circumstances
such as, for example, where the information is required to prevent imminent
bodily harm. There were no such circumstances here.
C. Should the Evidence Have Been Excluded
[75]
Neither the trial judge nor the Court of Appeal
found a breach of s. 8 in this case and, therefore, did not have to consider
the question of whether the evidence obtained in a manner that violated Mr.
Spencer’s Charter rights should be excluded under s. 24(2) of the Charter .
The question is whether the admission of the evidence would bring the
administration of justice into disrepute. I accept, as both Mr. Spencer and the
Crown agree, that we can determine this issue on the record before us. However,
I disagree with Mr. Spencer’s submission that the evidence should be excluded.
In my view, it should not.
[76]
The test for applying s. 24(2) is set out in R.
v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. 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”: para. 71.
[77]
Turning first to the seriousness of the state
conduct, my view is that it cannot be characterized as constituting either
“[w]ilful or flagrant disregard of the Charter ”: Grant, at para.
75. Det. Sgt. Parisien testified that he believed the request to Shaw was
authorized by law and that Shaw could consent to provide the information to
him. He also testified, however, that he was aware that there were decisions
both ways on the issue of whether this was a legally acceptable practice. While
I would not want to be understood to be encouraging the police to act without
warrants in “gray areas”, in light of the fact that the trial judge and three
judges of the Court of Appeal concluded that Det. Sgt. Parisien had acted
lawfully, his belief was clearly reasonable. In short, the police were acting
by what they reasonably thought were lawful means to pursue an important law
enforcement purpose. There is no challenge to any other aspect of the
information to obtain the search warrant. The nature of the police conduct in
this case would not tend to bring the administration of justice into disrepute.
[78]
The second Grant factor is the impact of the Charter-infringing
conduct on Mr. Spencer’s Charter-protected interests. That impact here was serious. As discussed above, anonymity is an
important safeguard for privacy interests online. The violation of that
anonymity exposed personal choices made by Mr. Spencer to be his own and
subjected them to police scrutiny as such. This weighs in favour of excluding
the evidence.
[79]
That brings me to the final factor, society’s
interest in an adjudication on the merits. As
explained in Grant,
while the public has a heightened
interest in seeing a determination on the merits where the offence charged is
serious, it also has a vital interest in having a justice system that is above
reproach, particularly where the penal stakes for the accused are high. [para.
84]
[80]
The offences here are serious and carry minimum
prison sentences. Society has both a strong interest in the adjudication of the
case and also in ensuring that the justice system remains above reproach in its
treatment of those charged with these serious offences. If the evidence is
excluded, the Crown will effectively have no case. The impugned evidence (the
electronic files containing child pornography) is reliable and was admitted by
the defence at trial to constitute child pornography. Society undoubtedly has
an interest in seeing a full and fair trial based on reliable evidence, and all
the more so for a crime which implicates the safety of children.
[81]
Balancing the three factors, my view is that
exclusion of the evidence rather than its admission would bring the
administration of justice into disrepute, and I would uphold its admission.
D. The Fault Element of the “Making Available” Offence
[82]
The Court of Appeal ordered a new trial on the
“making available” count on the basis that the trial judge had erred in his
analysis of the fault requirement for the offence. It found that the trial
judge had erred by finding that the making available offence required that Mr.
Spencer knew that some positive act on his part facilitated access by others to
the pornography. This error, in the Court of Appeal’s view, led the judge to
fail to consider whether Mr. Spencer had been wilfully blind to the fact that
the pornography was being made available to others through the shared folder. I
respectfully agree with the Court of Appeal on both points and would affirm the
order for a new trial.
[83]
There is no dispute that the accused in a
prosecution under s. 163.1(3) of the Criminal Code must be proved to
have had knowledge that the pornographic material was being made available.
This does not require, however, as the trial judge suggested, that the accused
must knowingly, by some positive act, facilitate the availability of the
material. I accept Caldwell J.A.’s conclusion that the offence is complete once
the accused knowingly makes pornography available to others. As he put it,
[i]n the context
of a file sharing program, the mens rea element of making available
child pornography under s. 163.1(3) requires proof of the intent to make
computer files containing child pornography available to others using that
program or actual knowledge that the file sharing program makes files available
to others. [para. 87]
While the trial judge’s
reasons may perhaps be open to more than one interpretation on this point,
reading his reasons as a whole, I also agree with Caldwell J.A. that the trial
judge erred in deciding that a positive act was required to satisfy the mens
rea component of the making available offence: para. 81.
[84]
I further agree with Caldwell J.A. that wilful
blindness was a live issue on the evidence and that it was because of the trial
judge’s error in relation to positive facilitation that he did not turn his
mind to the evidence that could support an inference of wilful blindness.
Wilful blindness is a substitute for knowledge. As explained by Charron J. in R.
v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21,
[w]ilful blindness does not define the mens rea required for
particular offences. Rather, it can substitute for actual knowledge whenever
knowledge is a component of the mens rea. The doctrine of wilful
blindness imputes knowledge to an accused whose suspicion is aroused to the
point where he or she sees the need for further inquiries, but deliberately
chooses not to make those inquiries. See Sansregret v. The Queen,
[1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka
J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful
blindness involves an affirmative answer to the question: Did the accused shut
his eyes because he knew or strongly suspected that looking would fix him with
knowledge?” [Emphasis added.]
[85]
The evidence calling for consideration of wilful
blindness included, for example, evidence that in Mr. Spencer’s statement to
police he acknowledged the following: that LimeWire is a file-sharing program;
that he had changed at least one default setting in LimeWire; that when
LimeWire is first installed on a computer, it displays information notifying
the user that it is a file-sharing program; that at the start of each session,
LimeWire notifies the user that it is a file-sharing program and warns of the
ramifications of file-sharing; and that LimeWire contains built-in visual
indicators that show the progress of the uploading of files by others from the
user’s computer: paras. 88-89.
[86]
Given that wilful blindness was a live issue and that
the trial judge’s error in holding that a positive act was required to meet the
mens rea component of the making available offence resulted in his not
considering the wilful blindness issue, I agree with Caldwell J.A. that the
error could reasonably be thought to have had a bearing on his decision to
acquit: para. 93; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at
para. 14.
III. Disposition
[87]
I would dismiss the appeal, affirm the conviction on the possession
count and uphold the Court of Appeal’s order for a new trial on the making
available count.
Appendix
Personal Information
Protection and Electronic Documents Act, S.C. 2000, c. 5
7.
. . .
(3) [Disclosure without knowledge or consent] For the purpose of
clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an
organization may disclose personal information without the knowledge or consent
of the individual only if the disclosure is
. .
.
(c) 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;
(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, or
. .
.
(d) made on the initiative of the organization to an
investigative body, a government institution or a part of a government
institution and the organization
(i) has reasonable grounds to believe that the information relates
to a breach of an agreement or a contravention of the laws of Canada, a
province or a foreign jurisdiction that has been, is being or is about to be
committed, or
(ii) suspects that the information relates to national security, the
defence of Canada or the conduct of international affairs;
Criminal
Code, R.S.C. 1985, c. C-46
163.1 . . .
(3) [Distribution, etc. of child pornography] Every person who
transmits, makes available, distributes, sells, advertises, imports, exports or
possesses for the purpose of transmission, making available, distribution,
sale, advertising or exportation any child pornography is guilty of
(a) an indictable offence and liable
to imprisonment for a term not exceeding ten years and to a minimum punishment
of imprisonment for a term of one year; or
(b) an offence punishable on summary
conviction and is liable to imprisonment for a term not exceeding two years
less a day and to a minimum punishment of imprisonment for a term of six
months.
. . .
487.014 (1) [Power of peace officer] For
greater certainty, no production order is necessary for a peace officer or
public officer enforcing or administering this or any other Act of Parliament
to ask a person to voluntarily provide to the officer documents, data or
information that the person is not prohibited by law from disclosing.
Appeal
dismissed.
Solicitors
for the appellant: McDougall Gauley, Regina.
Solicitor
for the respondent: Attorney General for Saskatchewan, Regina.
Solicitor
for the intervener the Director of Public Prosecutions: Public Prosecution
Service of Canada, Edmonton and Halifax.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General of
Alberta, Calgary.
Solicitors
for the intervener the Privacy Commissioner of Canada: Osler, Hoskin &
Harcourt, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Kapoor
Barristers, Toronto.
Solicitors for the intervener
the Criminal Lawyers’ Association of Ontario: Dawe & Dineen, Toronto; Schreck
Presser, Toronto.