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.