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).

No reasonable expectation of privacy in bad breath

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).

Government’s collection of census information does not breach Charter

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.