Case Report – Challenge to “lawful access” exemption in privacy legislation dismissed

On January 26th, the Saskatchewan Provincial Court dismissed a Charter challenge to a provision in the Saskatchewan Freedom of Information and Protection of Privacy Act that allows the Saskatchewan government and its agencies to answer law enforcement requests for personal information without obtaining individual consent.

The police identified an IP address of a computer used to share child pornography on the internet and made a warantless request for subscriber records to SaskTel in order to identify the accused as being associated with the computer. SaskTel provided the information without consent based on the exemption in section 29(2)(g) of Saskatchewan FIPPA, a relatively characteristic “lawful access” provision – i.e. one that allows an entity bound by privacy legislation to answer law enforcement requests for personal information. The accused claimed that this permissive provision allowed the police to conduct a search in violation of two Charter rights: (1) the section 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice (on the basis of the provision’s overbreadth and vagueness); and (2) the section 8 right to be free from unreasonable search and seizure.

The Court dismissed both claims with little reasoning. It quoted extensively from the Crown’s factum and held that the accused person’s position was inconsistent with the Supreme Court of Canada’s judgement in R. v. Plant and the Saskatchewan Court of Appeal’s judgement in R. v. Cheung. The Court’s decision will lack authority because the Court did not fully engage in the issues, but it does show that the “lawful access” issue is very live.

R. v. Trapp, 2009 SKPC 5.

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