Case Report – Court excludes evidence for unlawful police access to passenger manifest

On December 19, the Nova Scotia Supreme Court excluded evidence supporting drug trafficking charges after finding that the RCMP breached PIPEDA by reviewing a WestJet passenger manifest without making a formal request.

The issue of law enforcement’s access to personal information held by business organizations has arisen in a number of recent criminal cases, and it is becoming common for courts to judge the reasonableness of a police search in light of standards set by PIPEDA. PIPEDA restricts regulated organizations from disclosing personal information without consent, but includes the following key exemption:

7(2) For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowedge and consent of the individual only if the disclosure is…

(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

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(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

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province…

In this case, the RCMP reviewed a passenger manifest from a domestic flight, identified a passenger who had paid by cash shortly before the flight and who only had one piece of luggage and proceeded to search that passenger’s luggage. It found drugs and laid charges.

The Court held the RCMP breached PIPEDA because it did not make a “request” required by section 7(3)(c.1) given its “cozy” relationship with WestJet:

It might be a fair comment to say the officers had assumed they had permission to look at the manifest from their daily discussions and associations with the staff at Westjet.  However, in my mind that is not a satisfactory answer to the problem.  There were certain obligations upon the RCMP officers in reviewing the manifest which were legislated under PIPEDA and applied when they went to look at this manifest without a warrant.  Mr. Plimmer said Westjet put a protocol on procedures in place for the police to follow in order to see manifests.  The police were aware of the procedure they had to follow.  I find they didn’t do so in this case, but rather cavalierly walked into Westjet and simply started looking at manifests.

In addition to signaling that the procedural requirements in section 7(3)(c.1) are likely to be read strictly, the judgement is notable for its close consideration of WestJet’s privacy policy. The policy said that WestJet might be “required by legal authorities” to disclose personal information without consent, but did not say that WestJet would voluntarily cooperate with law enforcement. The Court said the policy “seems to emphasize that WestJet would only collect and disclose what is required by law and nothing more.” This weighed in favour of finding the search to be unreasonable and therefore unconstitutional.

The Court then excluded the evidence based on an application of the Collins test. In characterizing the breach as serious it said, “It is not the rights of a drug trafficker here that I am protecting.  It is the rights of a member of society who chooses to give personal information to an airline ticket agent which is recorded on a flight manifest.”

R. v. Chehil, 2008 NSSC 357 (CanLII).

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