The headline is sensational, but it aptly describes the issue that the Prince Edward Island Court of Appeal recently addressed in R v Molyneaux. The Court held that the police did not conduct a search (governed by section 8 of the Charter) by interviewing an informant about what she saw when she surreptitiously viewed the accused’s phone.
The police charged the accused with child pornography offences. There was a separate dispute about the seizure of images from the accused’s phone, but the Court of Appeal dealt with the informant’s statement alone. The informant attended the police station for an interview, and told the police that she had viewed numerous pornographic pictures of her child when browsing the accused’s phone. The defence argued that the police conducted a search into the phone by conducting this interview. It relied, in part, on cases that have precluded the police from obtaining private information from commercial actors – namely, R. v. Spencer, 2014 SCC 43 and R. v. Orlandis-Habsburgo, 2017 ONCA 649.
The Court rejected the defence argument, explaining:
Society’s conception of the proper relationship between the investigative branches of the state and the individual surely must allow the police to speak to a witness without prior judicial authorization.
I do not believe that the subject matter of the “search” was Molyneaux’s cell phone or the contents thereof. The police were seeking information that might reveal whether or not a crime occurred, and if so, whether or not they should pursue further investigation. The subject of the search was K.’s memory of what she saw the morning of December 31, 2017.
The Court distinguished Spencer and Orlandis-Habsburgo as matters arising out of the commercial context, in which expectations differ.
R v Molyneaux, 2020 PECA 2 (CanLII).
The Court of Appeal for Ontario issued a judgement yesterday that highlights the potential for secondary use of collected data as a factor that weighs in favour of privacy protection.
The police swabbed the door handle of a car that was parked in public to test for cocaine residue. The Court found a reasonable expectation of privacy that rendered the search – which was done without judicial authorization – unlawful.
While holding that physical contact with the car was “a factor,” the Court de-emphasized the significance of physical contact with a chattel:
Too narrow a focus on whether there was a trespass to a chattel, and the extent of interference with use of that chattel, could obscure the privacy interests at stake, as here, where the trial judge focused on the fact that the taking of the swabs had no impact on the appellant’s use of the car and was not known to him.
Compare this to the United States Supreme Court finding in United States v Jones, in which a majority held that the trespass committed by police who install a GPS tracking device on a vehicle is the trigger to constitutional privacy protection.
The Court of Appeal for Ontario’s analysis rested more heavily on the potential for using the swab sample for purposes more intrusive than testing for cocaine residue:
These swabs presumably revealed whether the appellant had handled cocaine. I also agree with the observations in Wong, at para. 27, that privacy concerns are heightened because the swabs may also provide DNA samples for analysis by police, even if that is not why they were initially collected, or what they were used for. Patrick concerned police searches of a suspect’s curb-side garbage. Though the police were searching for evidence of drug offences, the potential for collection of DNA was also relevant to the privacy analysis: see para. 30. The court also expressed scepticism of the notion that privacy concerns are diminished because the search was targeted at contraband: see Patrick, at para. 32; see also A.M., at para. 73.
Search methodologies can be so targeted as to become defensible. The Supreme Court of Canada’s Tessling case, for example, suggests that capturing a heat signature emanating from a residence is unobtrusive because it reveals criminal activity in the house – an illegal grow op – and not much else. The majority in Tessling expressly said that a search should not be judged based on “theoretical” secondary uses. In this case, the potential for secondary use was real.
Hat tip to Fred Schumann of Stockwoods.
R. v. Wawrykiewycz, 2020 ONCA 269.
On April 16th, the Court of Appeal for Ontario held that the Toronto Police breached sections 2(b), 8 and 9 of the Charter by enforcing a “condition of entry” to a public park because they were not properly authorized to establish the condition.
The City of Toronto had authorized the police to act as its agents “for the purpose of administering the Trespass to Property Act.” Acting under this authority, the police decided to search bags (and all other things in which weapons could be concealed) possessed by those attending a G20 protest at Allan Gardens. The appellant took issue with the legality of this “condition of entry.” The police restrained him when he refused to comply, searched his bag and confiscated a pair of swim goggles. You can see a video of the altercation here.
The Court of Appeal decision turned on text of the grant of authorization, which the Court held was too narrow given the Trespass to Property Act only provides property owners and occupiers with “a suite of enforcement powers” and not a power to create restrictions on access to property. It said, “The jurisprudence consistently takes a rigorous approach when interpreting the sources of legal authority relied upon by government to encroach upon the liberty of the subject.”
The Court ordered the police to pay $500 in damages. It said the appellant (who drew attention to his fate during the altercation and afterwards) did not establish any reputational or other personal loss. The Court also noted that the police acted in good faith with a view to the safety of the public.
Stewart v Toronto (Police Services Board), 2020 ONCA 255 (CanLII).
On January 28th the Nova Scotia Court of Appeal dismissed a privacy breach￼ allegation￼ that was based on a municipality’s admitted disclosure of address information to a related service commission so the service commission could bill for certain statutorily mandated charges. ￼The Court held there was no reasonable expectation of privacy in the information disclosed, reasoning as follows:￼
Mr. Banfield’s information was not confidential, secret or anonymous. Neither did it offer a glimpse into Mr. Banfield’s intimate, personal or sensitive activities. Nor did it involve the investigation of a potential offence. Rather, it enabled a regulated public utility to invoice Mr. Banfield with rates approved under statutory authority for a legally authorized service that, in fact, Mr. Banfield received.
Banfield v. Nova Scotia (Utility and Review Board), 2020 NSCA 6 (CanLII).
There has been significant discussion of the Supreme Court of Canada’s decisions in R v Jones and R v Marakah – cases in which the Court recognized a reasonable expectation of privacy in text messages that police obtained from others. In Jones, the police obtained messages from a telecom company and in Marakah the police obtained messages from a recipient’s phone.
At their broadest, Jones and Marakah are clearer than ever recognition that the Charter protects digital communications although digital communications are not easily controlled or kept secret. Justice Cote said it well in Jones:
Here, as in Spencer and TELUS, the only way to retain control over the subject matter of the search vis-à-vis the service provider was to make no use of its services at all. That choice is not a meaningful one. Focusing on the fact that Mr. Jones relinquished direct control vis-à-vis the service provider is accordingly difficult to reconcile with a purposive approach to s. 8. Canadians are not required to become digital recluses in order to maintain some semblance of privacy in their lives.
Recognizing this particular, highly-normative basis for Jones and Marakah is essential to properly understanding what these cases might mean for rights and entitlements of organizations that hold the digital information of others – including employers who hold the digital information of their employees. In contrast to the above statement, the Supreme Court of Canada has already recognized that employees have a meaningful choice as to whether they use a work system for their private dealings . In R v Cole, Justice Fish said the following about employee Cole’s choice:
In this case, the operational realities of Mr. Cole’s workplace weigh both for and against the existence of a reasonable expectation of privacy. For, because written policy and actual practice permitted Mr. Cole to use his work-issued laptop for personal purposes. Against, because both policy and technological reality deprived him of exclusive control over — and access to — the personal information he chose to record on it.
Jones and Marakah do not detract from this statement and, if anything, invite the law to develop in a way that gives even greater emphasis to employee choice and its impact on privacy and corporate data security. Corporate data security is all about choosing the right medium – the right tool – for the purpose. Our right as citizens to text without state interference is quite a different thing.
R. v. Jones, 2017 SCC 60 (CanLII).
R. v. Marakah, 2017 SCC 59 (CanLII).