Alberta Court says Charter precludes statutory compulsion to identify scrap metal sellers

On January 23rd, the Alberta Court of Justice held that the provisions of the Alberta Scrap Metal Dealers and Recyclers Identification Act that require scrap metal dealers to identify scrap metal sellers and transmit their information to government for law enforcement purposes violate the Charter prohibition against unreasonable search.

The Act requires sellers of scrap metal to identify themselves by the provision of the following information: first name, surname, current municipal address, government-approved identification, the name of the individual seller’s business, if applicable, and the specific make, model, colour, and license plate of the vehicle in which the scrap metal was transported to the dealer by the individual.

For, transactions involving “restricted metals” (including materials containing bronze and copper), dealers must transmit this information within 24 hours. To whom this transmission goes is significant. The Act says the transmission is to go to law enforcement in the manner prescribed. The regulation, though, establishes the government as the data holder and stipulates:

The Minister may require that peace officers and law enforcement agencies are granted access to the database referred to in subsection (2), provided that the disclosure of information in the database pertains to the discharge of the peace officer’s or law enforcement agency’s powers, duties or obligations under the Act.

The Court said the defence met its onus to prove the search was unreasonable. It noted that the Crown had not adduced evidence – in the form of “studies” – to justify the scheme, and held that the law that affords government latitude in regulatory searches ought no longer apply and, in any event, did not apply because the scrap metal scheme is targeted at everyone in the province rather than those who choose to enter a regulated sphere. The Court suggested that Albertans have no option to dispose of scrap metal without selling it, ultimately finding a violation and declining to apply the Act because the scheme was overbroad, intrusive and unjustified.

I’m prepared to assume a scrap metal theft problem in Alberta, and don’t have a conceptual problem with the identification of scrap metal sellers. I am not convinced by the Court’s handling of the regulatory context jurisprudence. The idea of routine transmission of transaction data directly to law enforcement does cause me pause, but the statute doesn’t quite invite that given the provision I’ve quoted above. This is a a point the Court did not address.

The decision is reminiscent of the Court Court of Appeal for Ontario’s decision in Cash Converters, in which it nullified a City of Oshawa bylaw as conflicting with MFIPPA, at the same time adopting and endorsing the IPC’s strict necessity test. The onus in Cash Converters, notably, was on the City.

R v Khairullah, 2025 ABCJ 14 (CanLII).

BC court rejects “mass surveillance” application

On December 16, the Supreme Court of British Columbia dismissed a Charter application that challenged police use of surveillance cameras to continuously record a public space in an attempt to deter further hate crimes.

Police use of surveillance cameras is attracting attention, primarily because of the ability to integrate surveillance technology with facial recognition and other similarly advanced technologies.

This case is about the use of video surveillance alone. The Vancouver Police Department parked a “public safety trailer” or “PST” on a street in Chinatown after a hate crime incident. It did so to deter further incidents and demonstrate to the community that it was taking action.

The PST had cameras mounted on a 10 metre pole. The cameras had the capacity to pan (360 degrees) and zoom (32x), but the VPD only used them to capture 40 square meters of public space outside the community centre that had been targeted with hateful graffiti. The applicant was a local resident who at first didn’t appreciate what the PST was, but then avoided walking near it to avoid “state surveillance.”

Those interested in privacy advocacy and litigation know that privacy is a concept that people value in wildly different ways. The spectre of this type of surveillance would be shocking to some. The applicant in Ontario case R v Hoang (also unsuccessful in their challenge), described pole mounted camera surveillance by police as follows:

A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.”

What strikes me about the VPD case is how well the VPD did in mitigating the risk that the application judge would take this view – both by good advocacy and good privacy management. Here is some of the mitigating evidence that led the judge to find that the applicant had no reasonable expectation of privacy in the circumstances:

VPD adduced evidence of the hate crime itself, in detail. The crime involved egregiously racist anti-Asian graffiti.
VPD tied this evidence to the broader context, which showed “a troubling increase in the targeted crime against the Asian community.”
VPD adduced good evidence of privacy management, including evidence (a) that it configured PST software in consultation with the Office of the Privacy Commissioner of British Columbia, (b) that it generally minimizes the use of PSTs given their perceived privacy impact, and (c) that the entire chain of command was involved in the decision to implement the PST in Chinatown, based on a clearly articulated objective.
VPD adduced evidence demonstrating rationality and proportionality of its response to the hate crime – i.e. evidence of its other investigative efforts and interventions, including deploying more officers to Chinatown.

This evidence swayed the judge to view the entire endeavour favourably, even though the record was not perfectly in favour of the VPD. One PST malfunctioned for a period of time, for example, during which someone tagged the PST itself with graffiti. One could use evidence like this to cast the VPD as Keystone Cops, but the application judge found this problem of no great consequence; equipment malfunctions, and the VPD (acting rationally and aligned with its objectives), replaced malfunctioning PSTs more than once.

On all the above facts and others, the application judge found the applicant had no reasonable expectation of privacy. In my view, there were two factors that drove this outcome. First, the surveillance was conducted openly, so the applicant was able to avoid being surveilled by altering how she travelled through her neighbour hood – i.e. she continued to have control over her informational privacy. Second, the surveillance footage was never used by the VPD or even intended to be used given the VPD’s deterrence objective. The judge said:

Had the VPD used the PST for an investigation, it may have provided them with information with which to help identify a suspect using ordinary investigative techniques. However, there is no evidence that the VPD had any ability to identify pedestrians as they walked through the field of view of the PST. Nor was identification of law-abiding citizens what the police were “really after”

The case therefore stands for the proposition that “deterrence video surveillance” of public spaces does not invite a “search” under section 8 of the Charter. It may be alarming to some, especially given the prospect of AI embedded facial recognition. Ironically, the alarmist picture of police surveillance trailers with powerful cameras on ten metre poles that could be connected to all sorts of matching technology supports the aim of deterrence. However, per Tessling, actual impact rather than “theoretical capabilities” determines the scope of section 8 rights.

Note that the judge also dismissed a allegation that the VPD breached section 7 of the Charter, finding that the choice between taking a “short detour” and being subject to video recording by the state does not impede a protected liberty interest.

Papenbrock-Ryan v Vancouver (City), 2024 BCSC 2288 (CanLII)

New privacy framework for Charter-bound employers

I was up at the crack of dawn today to burn down to Cape May, New Jersey for the DeSatnick Foundation Paddle Around the Cape Race this Sunday. (It’s still not to late to donate.) I listened to the Supreme Court of Canada’s York Region District School Board decision between Allentown PA and the NJ border. It’s significant, but thankfully only in a technical sense – not changing the balance between employee privacy and management rights. I’ll explain.

Of course, this is the case about a series of “searches” conducted by a school principal in an attempt to manage a workplace called “toxic” by labour arbitrator Gail Misra, who held the principal’s searches were justified. I put “searches” in quotes because the term is a technical one in the section 8 Charter jurisprudence, which Arbitrator Misra referred to but didn’t apply very well. Any criminal lawyer or judge reading her decision would quickly pick out Arbitrator Mirsa’s jurisprudential flaws. These flaws are what ultimately led the majority of the Supreme Court of Canada to quash her decision.

Along the way the Court unanimously (and finally?) held that the Charter applies to school boards (Ontario ones, at least). It said, “Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government and, thus, they are subject to the Charter under Eldridge’s first branch.”

Given Charter application, the majority held that Arbitrator Misra erred by balancing interests under the privacy test long employed by arbitrators and endorsed by the Supreme Court of Canada in Irving Pulp and Paper – a derivative of the famous KVP test. She was bound to apply the section 8 Charter framework, the majority said, and do so correctly.

So Charter-bound employers, like law enforcement, must not conduct unreasonable searches. The test is two part. There must be a “search,” which will only be so if there is a “reasonable expectation of privacy.” And then the search must be “reasonable.” This is a highly contextual test that encompasses a balancing of interests, and a labour arbitrators’ balancing will be subject to review on the correctness standard.

Non Charter-bound employers – like Irving – will continue to live under the balancing of interest test and KVP. As to whether that will result in different outcomes, the majority suggests it may not: “The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis.”

I’ve said here before that privacy law should be unified such that the concepts that bear upon section 8 analysis are used by labour arbitrators. This judgement grants my very wish. It should lend predictability to otherwise unpredictable balancing by labour arbitrators, as should correctness review. And although non Charter-bound employers will have a notionally different framework, I expect that arbitrators will strive for unification.

And there is nothing in the judgement that alters the management-employee balance or elevates workplace privacy rights. To the contrary, it erases a Court of Appeal for Ontario judgement that one could argue was too insensitive to the principal’s interest in dealing with a serious workplace problem.

This very short and informal post is made (that is plainly influenced by my one day vacation) is made strictly in my personal capacity.

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII).

BCCA finds statutory right of access to personal health information too broad

On April 24th, the Court of Appeal for British Columbia held that section 96(1) of the British Columbia Child, Family and Community Service Act infringes the Charter right against unreasonable search and seizure.

Section 96(1) gives British Columbia directors of child protection a right of access to information in the custody or control of public bodies, including health care bodies. Although for child protection purposes in the main, section 96(1) is worded broadly as follows:

96 (1)   A director has the right to any information that

(a)     is in the custody or control of a public body as defined in the Freedom of Information and Protection of Privacy Act, and

(b)     is necessary to enable the director to exercise [their] powers or perform [their] duties or functions under this Act.

The Court held that “necessity,” in particular given section 96(1)’s child protection purpose, imposes only a limited restriction – confining the right of access to “any information in the custody or control of a public body that the ‘“’Director considers necessary.'”

Interpreted as such, and based on a balancing of parents’ interest in informational privacy against the competing state interest in protecting children from harm, the Court held that section 96(1) was unreasonable.

The Court held that the application judge erred by focusing to heavily on the manner of intrusion – which does not invite an intrusion upon the body, entry into a private dwelling or ongoing surveillance – without giving due weight to the sensitivity of the information at issue. It said:

In applying the second Goodwin factor, a judge must consider not only the extent to which a particular methodology directly engages with the target of the search or seizure and interferes with their bodily integrity or personal surroundings, but the impact of the state action on their reasonable expectations of privacy in light of the nature of the items or information involved. In his earlier-cited article, Professor Penney describes the intrusiveness analysis in this manner: it is an assessment of the “degree to which [the search or seizure] discloses intimate personal information or compromises dignity, autonomy, or bodily integrity”: at p. 96, emphasis added. I agree.

The Court also held that the application judge erred in finding that section 96(1) has sufficient safeguards. Importantly, it said that prior judicial authorization or prior notice is not required to meet section 8’s standard of reasonableness, but held that section 96(1) lacks other features that renders it unreasonable. The Court (oddly) criticized the clarity of section 96(1) and suggested that the province replace the necessity requirement with a reasonableness requirement (?). More plainly, the Court said that the province must at least provide for after the fact notice and a meaningful oversight mechanism.

The Court declared section 96(1) to be of no force an effect to the extent that it authorizes the production of personal information, suspended the declaration for 12 months and ordered that the declaration be prospective only.

T.L. v. British Columbia (Attorney General), 2023 BCCA 167 (CanLII).

Hat tip to Ian Mackenzie.

No Charter-protected expectation of privacy in vehicle operation data

On July 20th, the Court of Appeal for Saskatchewan held that an accused person who drove his pickup truck through a highway intersection and stuck a semi-truck did not have a reasonable expectation of privacy that precluded the police from seizing a control module and its data from his vehicle before it was towed away.

The accident was horrible. There were six people in the truck with the accused, three of whom died, two of whom were children. The police charged the accused with dangerous driving and criminal negligence, and the prosecution relied on evidence retrieved from the wrecked pickup truck at the scene of the accident. Specifically, the police seized the truck’s Airbag Control Module (ACM) from under the driver’s seat. The ACM contained an Event Data Recorder (EDR) with data about the vehicle’s operation during the five seconds before impact in tenth of a second intervals – specifically, speed, accelerator pedal (% full), manifold pressure and service brake (on/off), seatbelt pretensioner readings, airbag deployment readings.

There are competing lines of Canadian jurisprudence regarding the warrantless seizure of on board vehicle computers and their data. The leading Ontario case is Hamilton, a Ontario Superior Court of Justice case that recognizes a reasonable expectation of (informational) privacy. In Yogeswaran, though, the Ontario Superior Court of Justice held that the territorial privacy interest in one’s vehicle is enough to preclude police search and seizure without prior judicial authorization.

Conversely, in Fedan, the Court of Appeal for British Columbia held that one’s territorial privacy interest in their vehicle is extinguished when the vehicle is seized and that EDR data is not associated with a strong enough informational privacy interest to warrant Charter protection.

The Court of Appeal for Saskatchewan followed Fedan. It reasoned that the accused’s truck, being totally destroyed on the side of a public roadway, was in the total control of the police whether or not it was yet to be formally seized based on section 489(2) of the Criminal Code. It concluded:

…the claim to a territorial privacy interest by Mr. Major in that component of his vehicle is weak. While a warrant could have been obtained, that does not mean one was required. I find that the state of the vehicle, Mr. Major’s loss of control over it, the nature of the ACM as a mechanical safety component installed by the manufacturer, and the focused task by Cpl. Green in locating and removing only it, do not support the continued existence of an objectively reasonable territorial privacy interest at the point when the vehicle was entered

Regarding informational privacy, the Court made the point that not all digital evidence is equally sensitive or revealing of one’s “biographical core.” EDR data of the kind at issue is limited to data about the operation of a vehicle immediately before an accident, and provides no “longer-term information about the driving habits of the owner or operator of a vehicle.” The Court concluded:

After considering the two lines of cases regarding EDR data, I find myself in substantial agreement with the reasoning from Fedan for the characterization of the data stored in the EDR. As in Fedan, the data here “contained no intimate details of the driver’s biographical core, lifestyle or personal choices, or information that could be said to directly compromise his ‘dignity, integrity and autonomy’” (at para 82, quoting Plant at 293). It revealed no personal identifiers or details at all. It was not invasive of Mr. Major’s personal life. The anonymous driving data disclosed virtually nothing about the lifestyle or private decisions of the operator of the Dodge Ram pickup. It is hard to conceive that Mr. Major intended to keep his manner of driving private, given that the other occupants of the vehicle – which included an adult employee – and complete strangers, who were contemporaneously using the public roadways or adjacent to it, could readily observe him. His highly regulated driving behaviour was “exposed to the public” (Tessling at para 47), although not to the precise degree with which the limited EDR data, as interpreted by the Bosch CDR software, purports to do. While it is only a small point, I further observe that a police officer on traffic patrol would have been entitled to capture Mr. Major’s precise speed on their speed detection equipment without raising any privacy concerns.

R v Major, 2022 SKCA 80 (CanLII).

Man CA – Police can identify driver of rental car via agency

On April 15th, the Court of Appeal for Manitoba held that an accused had no reasonable expectation of privacy in information that a rental car agency provided to the police without a warrant.

The police were investigating a fatal shooting. The shooter was in a rental car that belonged to a specific agency, they knew. When the police asked, the agency identified the co-accused as the renter and the accused as an authorized driver. It also provided their cell phone numbers, drivers license numbers and credit card numbers.

The Supreme Court of Canada decision in Spencer dictates that the PIPEDA allowance for volunteering information to the police does not vitiate one’s expectation of privacy for the purpose of Charter analysis. The Court of Appeal acknowledged this, and as in Spencer, it also held that contract language allowing for the disclosure of personal information as “required or permitted by law” was “of no real assistance.”

However, the Court of Appeal distinguished Spencer on other grounds. Its decision turns on the following key factors:

the rental agreement allowed the agency share information with law enforcement “to take action regarding illegal activities or violations of terms of service”
section 22 of the Manitoba Highway Traffic Act requires agencies to keep a registry of renters that is open to public inspection (even though the registry is to include “particular’s of the [renter’s] drivers license”)
the overall context – i.e., that driving is a highly regulated activity, with one’s identity as an operator of a vehicle being something that is widely known and ought to be widely knowable

Privacy advocates will take issue with the Court’s reliance on the rental agreement term, though the case does rest on two other significant factors, including a provision of Manitoba law that the accused did not challenge. On a quick look, I see that Saskatchewan has the same provision.

R v Telfer, 2021 MBCA 38 (CanLII).

PEICA finds no “search” in interviewing a hacker informant

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).

NSCA says no expectation of privacy in address information

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).

Man CA gives broad protection to lawyers’ reporting letters

On June 29th, the Court of Appeal of Manitoba held that the law has evolved such that reporting letters in real estate transactions (though often primarily summarizing facts) should be presumptively subject to solicitor-client privilege. It said, “Such correspondence is the direct result of a lawyer providing legal advice or otherwise acting as a lawyer, is descriptive of the services provided by the lawyer and arises as a result of the solicitor-client relationship.” This represents a change in Manitoba law, though is consistent with case law in other jurisdictions, including Ontario.

R v Douglas, 2017 MBCA 63 (CanLII).

A broader implication of the SCC’s decision in Fearon

The Supreme Court of Canada issued R v Fearon on December 11th. A 4-3 majority held that the police can search a cell phone incident to arrest without a warrant but subject to various limitations prescribed by the Court. One always must be careful in drawing too much from the Court’s handling of a specific issue in a specific context, but the dialogue between the majority and minority about the mitigating effect of a computer inspection protocol is notable for organizations.

The majority allows warrantless searches, in part, based on a finding that the privacy impact of a cell phone search incident to arrest can be meaningfully mitigated by the application of a “tailored” inspection. Justice Cromwell explains:

First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

This approach responds to the privacy concerns posed by the virtually infinite storage capacity of cell phones by, in general, excluding resort to that capacity in a search incident to arrest. It would also provide these protections while preserving the ability of the police to have resort to basic cell phone data where this serves the purposes for which searches incident to arrest are permitted.

Given the Crown bears the onus of establishing a reasonable search incident to arrest, the majority makes clear that police must take “detailed notes” of their inspection process.

For the minority, the privacy interest in a cell phone is too great to permit any warantless intrusion. Justice Karakatsanis also calls the majority’s reliance on the mitigating effect of a tailored inspection protocol “complicated,” “impractical” and inviting of “after-the-fact litigation.”

Organizations have been reckoning with an expectation of privacy on workplace computers since the Supreme Court of Canada’s 2012 finding in R v Cole. I’ve argued elsewhere that, notwithstanding Cole, the standard for employer searches will likely remain reasonably permissive. The reasoning in Fearon can be used by employers to argue for a permissive search standard. Employers should be careful, however, to (1) document the purpose of their inspections and (2) follow a logical, documented inspection process. Justice Karakatsanis is correct; litigation about the manner in which a computer inspection has been conducted is too easy to foresee.

R v Fearon, 2014 SCC 77 (CanLII).