Case Report – Identifying web user through ISP does not invalidate subsequent police search

20 Aug

On August 8th, the Ontario Court of Justice dismissed a Charter application that was based, in part, on a challenge to an RCMP letter request to Bell Canada, who answered the request and identified the accused as being associated with several internet protocol addresses at specific points in time.  The local police later obtained a search warrant for the accused’s home, seized computers containing child pornography and laid charges.

Mr. Justice Lalande distinguished R. v. Kwok – in which the Court found a Charter breach and excluded evidence in similar circumstances earlier this year – by noting that the judge hearing Kwok did not receive any evidence about the ISP’s terms of service. Though noting that the Bell Sympatico terms of service that governed the accused referred to disclosures “required by statute or a court order,” Mr. Justice Lalande nonetheless relied heavily on them in finding that the accused’s resonable expectation of privacy was low.

Mr. Justice Lalande was also strongly driven by his characterization of the information revealed by Bell:

There exists an argument quite aside from the impact of the service agreement (and other documents) that the applicant’s name and address as a subscriber falls within a category of basic information which within a commercial contractual setting does not attract a privacy interest because it is not information which tends to reveal any intimate details of personal lifestyle and choices.

Generally speaking, in modern day society, a person’s name and address is used and shared frequently.   A privacy issue is largely contextual in that a person may not want others to share information such as whether he or she is a subscriber to the services of an Internet Provider.  It is with regard to the context (taking into account all factors including the nature of the request, the particular information sought and the subscriber or service agreements) that the court has to assess the issue of reasonable expectation of privacy.

R. v. Ward, 2008 ONCJ 355 (CanLII).

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