Case Report – Ont. S.C.J. okays warrantless search of subscriber data

On February 10th, the Ontario Superior Court of Justice dismissed a Charter application that challenged a letter request made by the police to an internet service provider for the name and address of an account holder associated with a specific IP address at a specific point in time.

The Court held that the applicant had no expectation of privacy in the information disclosed, which the police used to obtain a warrant and lay child pornography charges. The Court narrowly construed the personal information collected in the search as one’s name and address (or the name and address of a cohabiting spouse) and held that this information is not “biographical information” that is protected by the Charter. It also relied on the service provider’s contract of service, which expressly permitted the transfer:

In addition, in this case the terms of the contract with the internet provider is one of the factors to be considered in assessing whether the asserted expectation of privacy is reasonable in the totality of the circumstances. That contract includes an agreement that the service provider could disclose any information necessary to satisfy any laws, regulations or other governmental request from any applicable jurisdiction. Further, the agreement contained a provision that by subscribing to the service, one consents to the collection, use and disclosure of personal information as described in the Bell Customer Privacy Policy and the Bell Code of Fair Information Practices. This privacy statement includes a provision that Bell Canada may also provide personal information to law enforcement agencies. Therefore by virtue of the contractual terms on which the internet service was provided an expectation of privacy is not reasonable

Thank you to David Fraser for digging up a copy of the decision!

R. v. Wilson (10 February 2009), 4191/08 (Ont. S.C.J.).

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.

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).

Case Report – Charter challenge to investigation allowed by PIPEDA rejected

On January 20th, the Ontario Court of Appeal affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud.

RBC had collected information from T-D Bank which allowed it to pursue an alleged fraud. Both banks are members of the Bank Crime Investigation Office of the Canadian Bankers Association, a designated “investigative body” under PIPEDA. They relied on sections 7(3)(d)(i) and (h.2) of PIPEDA in sharing the information. The Applicants took issue with these provisions and RBC’s actions taken in reliance on these provisions. They read:

(3)… an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is…

(d) made on the initiative of the organization to an investigative body… 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…

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province…

In February, the Superior Court of Justice held this grant of discretion to make disclosures did not necessarily threaten Charter rights, so was not unlawful itself. It also held that RBC was not acting as a government agent in its investigation and therefore was not bound directly by the Charter.

The Court of Appeal affirmed the application judge’s reasoning and added that the “main protagonist” was in a solicitor-client relationship with RBC that stripped him of standing to make a section 8 claim: “In the circumstances, he cannot lay claim to a reasonable expectation of privacy in the records relating to the receipt and disbursement of funds received from his client concerning the suspect mortgage transactions.”

Royal Bank of Canada v. Ren, 2009 ONCA 48.

Case Report – BCCA says non-occupant has standing to challenge search warrant

In a fact-driven award released on January 2nd, the British Columbia Court of Appeal held that an accused person who did not occupy premises discovered to be a grow operation had standing to challenge a search of the premises.

The accused lived elsewhere, but the Court inferred possession and control from evidence showing the accused was the owner, possessed keys and was seen there on a few occasions in the two weeks before the search. It held that the trial judge erred in denying standing merely because the accused was not an occupant and that based on possession and control and all the circumstances, the accused had a reasonable expectation of privacy that he was entitled to exercise.

R. v. Vi, 2008 BCCA 481 (CanLII).

Case Report – Man QB quashes orders for production of media tapes

On August 27th, the Manitoba Court of Queen’s Bench quashed two Criminal Code production orders issued against the CBC and CTV. It held that the deficiency of the information as it related to the media’s privacy interest led to a flawed exercise of judicial discretion.

The order was for audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

The Court considered the sufficiency of the information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. It held that the informant ought to have disclosed:

that the police had been given prior notice of the press conference but had chosen not to attend;
the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

The decision stresses that the police ought to do their best to help issuing judges conduct the public interest balancing exercise required by the media search jurisprudence, an exercise made difficult given the media does not participate. The Court also suggested that issuing judges should issue reasons to facilitate effective review.

Canadian Broadcasting Corporation v. Manitoba (Attorney-General), 2008 MBQB 229 (CanLII).

Case Report – Crown violates section 8 by obtaining employment records via subpoena

On July 16th, Mr. Justice Gary Trotter (formerly of Queen’s University Law School) held that the Crown conducted an unlawful search and seizure by obtaining an accused person’s employment records via subpoena rather than search warrant.

While noting that subpoenas are issued within a judicial process, he accepts the defence argument that proceeding by way of subpoena to seek records belonging to an accused person deprives the accused person of the procedural safeguards embedded in the Criminal Code search warrant provisions. He states:

The police should have applied for a search warrant to obtain Ms. Incognito-Juachon’s employment records. In failing to do so, the police denied her the protections of the search warrant provisions of the , which are now underwritten by s.8 of the Charter. The police were no more entitled to access Ms. Incognito-Juachon’s employment records with a subpoena than they were entitled to subpoena her legal file from her current or former counsel: see Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney Genera): Regina v. Fink, (2002), 167 C.C.C. (3d) 1 (S.C.C.). A search warrant is required in both instances. This is not to suggest that the police cannot use the subpoena process for investigative purposes, once judicial proceedings are afoot. However, in this case, where the sole purpose in obtaining the subpoena was to obtain the private records of an accused person, an application to obtain a search warrant was required. The failure to obtain a search warrant infringed Ms. Incognito-Juachon’s rights under s.8 of the Charter.

There’s a significant discussion of an employee’s interest in his or her employment records, which Trotter J. notes are deemed to be “private records” for certain purposes under the Criminal Code. While finding that an accused person’s interest in his or her employment records is of such a character to demand the Crown retrieve them via search warrant, he also notes that employment files are kept by employers subject to a broad right of use (and therefore, in the circumstances, the Crown’s breach was less serious).

Most employers would have a different view about employment records than Trotter J. – at least regarding non-medical employment records. They would say they “own” the records subject to any employee rights granted under contract or by privacy statute. This position is not threatened by this case, which has a significance that’s defined to its criminal context.

R. v. Incognito-Juachon, 2008 CanLII 36164 (Ont. S.C.J.).

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

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).

One to Watch – Garbage case ready for hearing at SCC

The Toronto Star reports that the appeal of R. v. Patrick – about whether there is a reasonable expectation of privacy in garbage stored outside of a home – is ready to be head by the Supreme Court of Canada this fall. My summary of the Alberta Court of Appeal decision is here. The United States Supreme Court heard the issue in 1988 and held, in California v. Greenwood, that there is no reasonable expectation in garbage because of its ready access to the world.

Case Report – NB judge grants Charter motion to exclude evidence on seized hard drive

On June 2nd, a New Brunswick Provincial Court judge excluded evidence on a hard drive obtained by the Canada Revenue Agency pursuant to a search warrant.

The dispute related to files that were stored on the hard drive but were also beyond the temporal scope of the search warrant and over which the accused consistently asserted an expectation of privacy. The motions judge found that the CRA did not act improperly by seizing the hard drive, but breached section 8 of the Charter because it did not immediately file an amended return before the issuing judge and undertake not to use the out-of-scope records. He found a second breach because the CRA, instead, used the out-of-scope records to file a second search warrant in another unrelated investigation. The judge cited Celanese after stressing the government’s duty to exercise caution in searching intermingled documents.

Given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant.

However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner.

The section 24(2) analysis turned on the seriousness of the breach, which the judge characterized as a “clear pattern of a continuous obtrusive breach.”

R. v. Daley, 2008 NBPC 29 (CanLII).