On January 13th, the Court of Appeal for Ontario held that a convicted appellant did not have a reasonable expectation of privacy in “what could be seen and heard on [his] property from his neighbour’s [property].”
The police trespassed on an neighbour’s rural property to conduct surveillance, and they heard gunshots and saw two individuals with rifles outside of the appellant’s house. Based on these observations, the police obtained a warrant to search the appellant’s house. They ultimately secured one or more convictions on drug and weapons charges.
The Court held, that in the context, it did not matter that the police were trespassing. (The gunshots were loud, and the appellant’s property was abutted by a public road in any event.) It also held that the police did not obtain “personal information,” reasoning as follows:
What triggered the application for the first warrant was the sound of the discharge of a firearm – something that could scarcely be concealed – coupled with visual observations of persons outdoors either firing a rifle or holding a rifle. These were bare observations of physical acts. There was no personal information obtained.
This illustrates how the personal information concept is not as simple, and perhaps not as broad, as one might think. The facts observed clearly allowed the police to infer what was in the house and obtain, on the reasonable and probable grounds standard, a search warrant. Nonetheless, the Court held that the observations did not invite a collection of personal information.
R v Roy, 2020 ONCA 18 (CanLII).
On April 8th, the Ontario Superior Court of Justice affirmed a $1,500 damages award for a privacy breach that entailed the disclosure of information that the defendant received because she was the plaintiff’s social media friend.
The plaintiff and defendant were pilots who worked for the same airline. The plaintiff shared his work schedule with the defendant though an application that allowed him to share his information with “friends” for the purpose of mitigating the demands of travel. The airline also maintained a website that made similar information available to employees. The defendant obtained the schedule information through one or both of these sites and shared it with the plaintiff’s estranged wife.
There are a number of good issues embedded in this scenario. Is a work schedule, in this context, personal information? Does one have an expectation of privacy in information shared in this context? Does the intrusion upon seclusion tort proscribe a disclosure of personal information?
The policy of Air Canada, that must be followed by all employees, emphasises the privacy rights of the employees. This policy specifically prohibits any employee from disseminating personal information of another employee to third parties without express permission of the other employee. The sharing of personal information between employees is clearly restricted for work related purposes only. Permission to review and obtain this information is not given unless it is for work related purposes. If the information is reviewed and used for any other purpose, this results in conduct that constitutes an intentional invasion of the private affairs or concerns. In addition, I find that a reasonable person would regard this type of invasion of privacy as highly offensive and causing distress, humiliation and anguish to the person.
The defendant did not appeal the $1,500 damages award.
John Stevens v Glennis Walsh, 2016 ONSC 2418 (CanLII).
Last Friday’s Supreme Court of Canada’s decision in R v Spencer renders it unlawful for a telecommunications service provider (or any other commercial actor) to voluntarily identify an anonymous internet user to help the police investigate crime.
Spencer is about the means by which police have investigated the trading of child pornography on the internet – i.e., by identifying objectionable online activity that is associated with an IP address and by asking the service provider who assigned the IP address for “subscriber information” that identifies the holder of the account to which the IP address was assigned. This legality of this means of investigation – enabled by service provider cooperation – has been heavily litigated; in 2012, the Court of Appeal for Ontario held that the police do not breach section 8 of the Charter by obtaining the identity of an anonymous internet user without judicial authorization because such a user has no reasonable expectation of privacy.
The Supreme Court of Canada has now unanimously reached the opposite conclusion. The Court stayed true to the case law that establishes that the protection afforded by section 8 of the Charter should not be debased by framing the activity that the proponent seeks to protect as criminal and therefore unworthy of protection. Although the police may have an entirely legitimate interest in pursuing criminal activity that we all can observe on the open internet, the issue according to the Court was (more neutrally) whether “people generally” have a right to use the internet anonymously.
The Court said “yes” and, in doing so, offered some principled support for online anonymity. It also said that the service provider’s contractual terms and the provision of the Personal Information Protection and Electronic Documents Act that allows for voluntary disclosures to law enforcement were both too ambiguous to weigh against a reasonable expectation of privacy finding.
The Court then held that police requests for subscriber information are not reasonable because they are not “authorized by law.” Notably, the Court did not consider whether the search was authorized by the common law nor did it consider the interplay between section 8 of the Charter and the common law constraint on police action, which a majority of Court said is less constraining than section 8 in R v Kang-Brown (see para 56). To the contrary, the Court’s decision in Spencer appears to be heavily driven by the proposition that the police only have the power to ask questions “relating to matters that are not subject to a reasonable expectation of privacy.”
Spencer is a very significant decision on the reasonable expectation of privacy concept, internet anonymity and police powers.
R v Spencer, 2014 SCC 43 (CanLII).
On January 7th, the Ontario Superior Court of Justice overturned a trial decision that had recognized a Charter-protected expectation of privacy in the odour emanating from one’s breath. A doctor who had treated the accused following a motor vehicle accident told a police officer that the accused’s breath smelled of alcohol, following which the police obtained an warrant to seize a blood sample. The Court also noted that the doctor was not acting as a state agent in making his observation and reporting to the police.
R v Maureen Daly, 2014 ONSC 115 (CanLII).
On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.
The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:
Thus , the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in the information requested by the 2006 Long Form Census, which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi – criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and “delinked” from the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.
The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.
R v Finlay, 2013 SKCA 47.
On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”
R. v. Delaa, 2009 ABCA 179 (CanLII).